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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