Park Lake Resources Ltd. Liability Co. v. United States Department of Agriculture

F I L E D
United States Court of Appeals
PUBLISH Tenth Circuit

NOV 19 1999
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk

PARK LAKE RESOURCES LIMITED LIABILITY
COMPANY; PARK COUNTY MINING
ASSOCIATION,

Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF No. 98-1020
AGRICULTURE; UNITED STATES FOREST
SERVICE; DANIEL GLICKMAN, Secretary of
Agriculture; MICHAEL P. DOMBECK, Chief,
United States Forest Service; ELIZABETH A.
ESTILL, Regional Forester, Region II, United
States Forest Service,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 96-Z-1838)

William Perry Pendley of Mountain States Legal Foundation, Denver, Colorado,
for Plaintiffs-Appellants.

Andrew C. Mergen, Attorney (Lois J. Schiffer, Assistant Attorney General; Ellen
Durkee and John A. Bryson, Attorneys, with him on the brief), Department of
Justice, Environment and Natural Resources Division, Washington, D.C., for
Defendants-Appellees.
Before SEYMOUR, Chief Judge, PORFILIO and KELLY, Circuit Judges.

SEYMOUR, Chief Judge.

Park Lake Resources, LLC, and Park County Mining Association

(collectively Park Lake) filed this action challenging the United States Forest

Service’s designation of 695 acres straddling Hoosier Ridge in Colorado as a

Research Natural Area (RNA) pursuant to 36 C.F.R. § 251.23 (1998). 1 Park Lake

contends the designation is arbitrary, capricious and contrary to plain regulatory

language in violation of the Administrative Procedure Act (APA), 5 U.S.C.

§706(2). Because we conclude Park Lake has failed to establish that this issue is

ripe for review, we dismiss the appeal and vacate the judgment below. See

Sierra Club v. Yeutter, 911 F.2d 1405, 1421 (10th Cir. 1990) (holding case not

ripe, dismissing appeal, and vacating judgment below).

I.

A research natural area (RNA) is selected by the Chief of the Forest

1
We cite in this opinion to the 1998 version of the Code of Federal Regulations.
The applicable provisions have not been significantly amended during the
relevant time period.

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Service to “illustrate adequately or typify for research or educational purposes,

the important forest and range types in each forest region” and must be “retained

in a virgin or unmodified condition.” 36 C.F.R. § 251.23. The Hoosier Ridge

area contains a unique alpine ecosystem that includes ten rare and threatened

plant species, one of which is protected under the Endangered Species Act.

Because of these unique features, the Forest Service initially recommended this

area for RNA designation in 1984. After completing the necessary administrative

requirements, the Forest Service designated the area an RNA in 1991.

Several mining groups, including Park County Mining Association, filed an

administrative appeal challenging the RNA designation, claiming it would

foreclose any current and future mining activities in the area. In light of these

appeals, the Chief of the Forest Service withdrew the RNA designation and

ordered its reevaluation by the Regional Forester. During the reevaluation

process, the Bureau of Land Management (BLM) segregated the proposed RNA

area for two years from location and entry under the public mining laws. This

segregation period expired in May 1995, at which time Park Lake entered the area

and located mineral claims there. Those claims were recorded and filed with the

State of Colorado in October and with the BLM in November.

The Forest Service issued an Environmental Assessment (EA) for the

proposed Hoosier Ridge RNA in May 1995 and adopted Alternative 2, which

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recommended the establishment of an RNA. Accordingly, on December 5, the

Forest Service issued another final Designation Order designating Hoosier Ridge

as an RNA. The adopted Alternative 2 of the EA required road closures and

barricades to prevent motorized access in the RNA. These requirements were

consistent with the Forest Service’s RNA Management Area Prescription for the

Rocky Mountain Region, which states that “motorized use is prohibited, except

when necessary to provide research or educational access.” See Aplt. App. at

134.

The Forest Service was unaware of Park Lake’s recent mining claims on

Hoosier Ridge at the time it made the designation order. Park Lake filed an

unsuccessful administrative appeal with the Forest Service, claiming it acted

arbitrarily and capriciously in making such a designation without evaluating the

presence of Park Lake’s mining claims. Park Lake then filed this complaint in

federal district court. See Park Lake Resources v. United States Dep’t of Agric.,

979 F. Supp. 1310 (D. Colo. 1997).

Park Lake’s complaint sought review of a “final agency action” pursuant to

the APA, 5 U.S.C. § 704. Park Lake requested a declaration that the RNA

designation was arbitrary, capricious, and not in accordance with the law, a

permanent injunction enjoining the Forest Service from implementing the RNA

designation, and a permanent injunction enjoining the Forest Service from

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denying Park Lake motorized access to its mining claims or otherwise restricting

Park Lake’s mining activities within the Hoosier Ridge. The district court held

that the RNA designation met the regulatory criteria as set forth in 36 C.F.R. §§

219.25 and 251.23. See Park Lake, 979 F. Supp. at 1314. The court further

concluded that the Forest Service was aware of and considered existing mining

activities in the area before determining that the mining modifications were not

sufficiently extensive to interfere with the RNA designation. See id. The district

court therefore held that the designation of the RNA was not arbitrary and

capricious. See id. at 1315. Park Lake appeals that decision.

The Forest Service argues for the first time on appeal that Park Lake’s

claim is not yet ripe because it has failed to show any present injury caused by the

RNA designation. Although this issue was not raised in the district court, we

consider its merits because ripeness affects this court’s subject matter

jurisdiction, see Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732 (1998)

(case not justiciable if not ripe for review); see also Ash Creek Mining Co. v.

Lujan, 934 F.2d 240, 243 (10th Cir. 1991) (whether claim is ripe for review bears

on court's subject matter jurisdiction under Article III of Constitution), and may

be raised at any time, see Keyes v. School Dist. No. 1, 119 F.3d 1437, 1444 (10th

Cir. 1997).

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 II.

We initially note that the burden is on the plaintiff to provide evidence

establishing that the issues are ripe for review. See CSG Exploration Co. v.

FERC, 930 F.2d 1477, 1486 (10th Cir. 1991). Whether or not an agency decision

is ripe for judicial review is determined by examining the fitness of the issues for

judicial decision and the hardship caused to the parties if review is withheld. See

Ohio Forestry, 523 U.S. at 733 (quoting Abbott Labs. v. Gardner, 387 U.S. 136,

149 (1967)); Mobile Exploration & Producing U.S., Inc. v. Dep’t of Interior, 180

F.3d 1192, 1197 (10th Cir. 1999). In this case, Park Lake has failed to convince

us that the issue is fit for review or that immediate review is necessary to avoid

injury.

A. Fitness of the issues for judicial review

A vital aspect of the requirement that issues be fit for review is that the suit

challenge “final agency action.” See, e.g., Mobil Exploration, 180 F.3d at 1197

(citing APA, 5 U.S.C. § 704, and Abbott Labs., 387 U.S. at 149-54). Although

the RNA designation at issue here is deemed a final administrative action by

regulation, see 36 C.F.R. § 217.17(g), it is nevertheless still subject to agency

activity with regard to Park Lake’s mining activities.

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 It is important to note that mining activities may occur on RNA land. See

36 C.F.R. §§ 251.23, 251.50. Anyone wishing to conduct mining activities on any

national forest land “which will likely cause a significant disturbance of surface

resources” must first file a proposed plan of operations with the Forest Service.

36 C.F.R. § 228.4(a). Park Lake has not yet submitted a proposed plan of

operations, claiming that it attempted to do so but the district ranger would not

accept it while this litigation was in progress.

The Forest Service has several alternatives available to it when faced with a

proposed plan of operations for mining activities conducted on RNA land. See 36

C.F.R. § 228.5; Supp. App. of Fed. Aplee. at 76 (Forest Service Manual,

Standards and Policy Guidelines for RNAs). Once presented with Park Lake’s

proposed plan of operations, the Forest Service may approve it, may require

modification, or may even modify or withdraw the RNA designation. 2 Moreover,

the Forest Service may restrict Park Lake’s mining activities for reasons unrelated

Specifically, Standard 4.3.2 of the Forest Service Manual, Standards & Policy
2

Guidelines for RNAs, states:
Mineral and oil entry uses and prospecting ideally should be
excluded from an Area. Where exclusion is feasible it should be
obtained. Otherwise, effort should be directed to the best alternative
which may entail: (1) promote entry use by nonsurface or minimal
surface disturbance; (2) reduce entry and prospecting impacts; (3)
acquire an Area of near-equivalent character and value which has
less entry potential to serve as an alternate in the event of entry and
its impacts.

Supp. App. of Fed. Aplee. at 76.

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to the fact that the mining claim is on RNA land.

Disregarding the land’s RNA designation, the Forest Service has a plethora

of statutory and regulatory provisions governing national forests upon which it

might rely when and if it requires modifications prior to its aproval of Park

Lake’s plan of operations. See, e.g., 16 U.S.C. § 551 (Forest Service must protect

national forest land from destruction and depredation); 16 U.S.C. § 478 (miners

must comply with rules and regulations covering national forests); 16 U.S.C. §

1604(i) (permits relating to use and occupancy of national forest system lands

must be consistent with the land management plan for that specific forest); 36

C.F.R. § 228.4(f) (mining operations may require environmental analysis

considering varying environmental impacts); 36 C.F.R. § 228.5 (Forest Service

may require changes in plan necessary to “meet the purpose of the regulations in

this part”); 36 C.F.R. § 228.8 (mining operations on forest land must be

conducted to minimize adverse environmental impacts); 36 C.F.R. § 228.12 (when

reviewing means of access to mining claims in proposed plans, Forest Service

must specify all “conditions reasonably necessary to protect the environment and

forest surface resouces”). See generally Joel A. Ferre, Forest Service Regulations

Governing Mining: Ecosystem Preservation versus Economically Feasible Mining

in the National Forests, 15 J. Energy Nat. Resources & Envtl. L. 351 (1995).

Indeed, the Forest Service has relied on these provisions, as well as many other

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considerations, in a variety of cases where it restricted mining activities on

national forest land. See, e.g., Duncan Energy Co. v. United States Forest

Service, 50 F.3d 584, 586 (8th Cir. 1995) (Forest Service required conditions and

protective measures on proposed plan of mining operations citing requirements of

National Environmental Protection Act, 16 U.S.C. § 551, and 36 C.F.R. §

251.50(a)); Clouser v. Espy, 42 F.3d 1522, 1529-30, 1533-36 (9th Cir. 1994)

(Forest Service regulated means of access to mining claims on national forest

citing its authority under 16 U.S.C. § 251 and 16 U.S.C. § 478; declined to review

mining plan of operations until BLM determined claim’s validity citing agency

rule in Forest Service Manual; required modifications prior to approval of mining

plan of operations citing its authority under 36 C.F.R. § 228.5(a)); United States

v. Weiss, 642 F.2d 296, 298 (9th Cir. 1981) (Forest Service has power to regulate

mining operations on national forest land under 16 U.S.C. §§ 478 and 551);

United States v. Richardson, 599 F.2d 290, 292 (9th Cir. 1979) (Forest Service

sought injunction of mining operations on forest land causing unwarranted surface

destruction under 30 U.S.C. § 612); Baker v. United States Dep’t of Agriculture,

928 F. Supp. 1513, 1515 (D. Idaho 1996) (Forest Service required restrictions on

mining operations plan citing requirements of Endangered Species Act and the

National Environmental Policy Act). Thus, any attempt to foresee which specific

regulation or statute the Forest Service might rely upon when reviewing Park

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Lake’s plan is an exercise in speculative gymnastics.

Generally, the Forest Service’s review of proposed plans of operation for

mining activities is guided by the specific management plan for that forest area.

See 16 U.S.C. § 1604(i). The two forest management plans covering the Hoosier

Ridge area have been amended to provide for management of the RNA at issue

here. See Aplt. App. at 196. Although neither plan is in the record, it is apparent

that these plans will guide Forest Service management of the Hoosier Ridge RNA

and will affect the review and approval of any proposed plan of mining

operations.

Park Lake’s claim is thus similar to that of the Sierra Club in Ohio

Forestry, 523 U.S. at 728 (challenge to Forest Service’s management plan guiding

all natural resource management activities in a national forest). In Ohio Forestry,

the Sierra Club challenged a Forest Service land resource management plan on the

ground that it allowed excessive logging and clear cutting. The Court pointed out

that the Forest Service had to take further site-specific action using the forest plan

as a management device once faced with proposed logging activities. See id. at

734 (before any logging could be allowed, Forest Service had to “focus on a

particular site, propose a specific harvesting method, prepare an environmental

review, permit the public an opportunity to be heard, and (if challenged) justify

the proposal in court”). The Court noted that the agency could revise the

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management plan in response to site-specific proposals and that those revisions

might negate the Sierra Club’s claimed injuries. See id. at 735-36. The Court

therefore held the issue not ripe for review from either the agency’s or the court’s

perspective.

Just as with the Forest Service guidelines for RNAs, the regulations at issue

in Ohio Forestry required the Forest Service to revise the forest plan during

implementation as appropriate. See id. at 735; cf. Supp. App. of Fed. Aplee. at 76

(Standards and Policy Guidelines for RNAs, Standard 4.3.2). The fundamental

similarities between these two cases convince us the issue here is similarly not fit

for review. See also Texas v. United States, 523 U.S. 296, 300 (1998) (claim not

ripe if it rests upon contingent future events that may not occur as anticipated, or

indeed may not occur at all); Yeutter, 911 F.2d at 1420 (adjudication should be

postponed where harm and justification for action are both contingent on future

administrative action).

B. Harm to parties caused by withholding review

Nor are we persuaded Park Lake will be harmed if we withhold review.

Our inquiry into harm takes into account financial, operational, and legal

consequences flowing from the agency action. See Mobil Exploration, 180 F.3d

at 1203. Park Lake has failed to establish that it has felt any effects whatsoever

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from the RNA designation itself. Park Lake’s only claimed injury is from the

Forest Service’s refusal to review its proposed plan. The Forest Service declined

to review the plan due to this litigation over the designation, however, not

because of the designation itself. Since Park Lake’s claimed injury is not caused

by the agency action it challenges, Park Lake has failed to show how it is harmed

by withholding review of that action. See Mobil Exploration, 180 F.3d at 1203-04

(“procedural wrangling” over agency action does not, standing alone, create

ripeness); CSG Exploration Co., 930 F.3d at 1486 (unsupported assertions that

agency action chilled fuel exploration were insufficient to conclude issue ripe for

review). Cf. Rocky Mountain Oil and Gas Ass’n v. Watt, 696 F.2d 734, 741-43

(10th Cir. 1982) (pre-enforcement challenge was ripe where plaintiffs presented

extensive evidence showing concrete financial harm directly caused by agency

action).

Moreover, Park Lake may seek review of this issue at a later date. If the

Forest Service does in fact place restrictions upon Park Lake’s mining activities,

Park Lake may challenge those restrictions and the RNA designation in one suit.

See, e.g., Ohio Forestry, 523 U.S. at 734-35 (Sierra Club could bring its claim at

a later time when plan was applied in a site-specific manner); Clouser, 42 F.3d at

1527 (after Forest Service barred motorized access to mining claim because of

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claim’s location in wilderness area, plaintiffs challenged the restrictions and

agency’s underlying authority as ultra vires and arbitrary and capricious).

Similarly, in Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990), the

Supreme Court held that withholding review of an environmental group’s

challenge to a “land withdrawal review program” was harmless. The program

there was much like a forest management plan in that it did not have an

immediate effect on the plaintiffs, and the agency was required to apply the

review program to specific proposed logging plans on specific sites. See id. at

891-92. The Court also held that an individual plaintiff’s challenge to the review

program for allowing mining activities was not ripe at that time but could be

brought later. The Court explained:

[A]ny person seeking to conduct mining operations . . . must first
obtain approval of a plan of operations. . . . If that permit is granted,
there is no doubt that agency action ripe for review will have
occurred; nor any doubt that, in the course of an otherwise proper
court challenge, [Plaintiff] would be able to call into question the
validity of the classification order authorizing the permit. However,
before the grant of such a permit, . . . it is impossible to tell where or
whether mining activities will occur. Indeed, it is often impossible
to tell from a [land] classification order alone whether mining
activities will even be permissible.

Id. at 892-93 n.3. See also II K ENNETH C ULP D AVIS & R ICHARD J. P IERCE , J R .,

A DMINISTRATIVE L AW T REATISE § 15.16 (3d ed. 1994) (discussing Lujan and

stating that challenges to agency adoption of programs are unripe). This

reasoning bolsters our determination that Park Lake has not yet been injured by

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the bare RNA designation at issue here and may bring this challenge when it has

been directly affected.

The Forest Service’s RNA designation did not command Park Lake to do

anything, does not subject Park Lake to any criminal or civil liability, and creates

neither legal rights nor obligations. See Ohio Forestry, 523 U.S. at 733. Park

Lake has simply failed to show any harm whatsoever stemming from delayed

review until the Forest Service’s action on a proposed mining plan is complete.

The purpose of the ripeness doctrine is to “protect the agencies from

judicial interference until an administrative decision has been formalized and its

effects felt in a concrete way by the challenging parties.” Id. (quoting Abbott

Labs. at 148-49). In this case, although the RNA designation has been

“formalized,” Park Lake will not feel any effects of the designation until the

Forest Service reviews its submitted plan and requests or requires any restrictions

upon its mining activities. Waiting until that occurs preserves and protects the

administrative process and meets our prudential concerns about interfering with

that process or deciding hypothetical scenarios. See, e.g., Toilet Goods Ass’n v.

Gardner, 387 U.S. 158, 163-165 (1967) (although agency action was final and

issues were purely legal, challenge to FDA regulation was not ripe since later

review was possible and the effect of the regulation on the plaintiffs was purely

speculative); Yeutter, 911 F.2d at 1416 (courts should use caution against decision

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where harm is contingent upon uncertain or speculative future administrative

action). Review now could result in piecemeal challenges, and further agency

action could render this challenge moot. See id. at 1418.

III

For these reasons, we conclude the issues presented here are not yet ripe.

We therefore DISMISS the appeal, VACATE the judgment of the District Court,

and REMAND with instructions to dismiss the complaint as not ripe.

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