United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2005 Decided January 17, 2006
No. 05-5032
THE WILDERNESS SOCIETY,
APPELLANT
v.
GALE A. NORTON,
SECRETARY OF THE UNITED STATES
DEPARTMENT OF THE INTERIOR, AND
FRAN MAINELLA, DIRECTOR NATIONAL PARK SERVICE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 03cv00064)
Craig S. Coleman argued the cause for appellant. With him
on the briefs were Brian B. O’Neill, Richard A. Duncan,
Jonathan W. Dettmann, and Leslie L. Jones.
Lisa E. Jones, Attorney, U.S. Department of Justice, argued
the cause for appellees. On the brief were David C. Shilton and
Anna T. Katselas, Attorneys.
Before: GARLAND, Circuit Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.
2
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: The Wilderness Society
(“TWS” or the “Society”) filed suit in the United States District
Court for the District of Columbia. The complaint alleges that
the National Park Service (“NPS” or the “Park Service”) has
chronically failed to undertake various legal obligations with
respect to the identification and management of “wilderness” in
the National Park System. TWS seeks judicial redress to
compel the agency to take actions that allegedly have been
unlawfully withheld and unreasonably delayed. On January 10,
2005, the District Court granted relief with respect to five of the
Society’s claims, but dismissed the remaining 39 counts alleged
in TWS’ complaint. TWS appealed the dismissals. The
Government did not file a cross-appeal.
At issue here are TWS’ claims that NPS has failed to
comply with certain statutory mandates and deadlines and also
failed to adhere to certain management policies. We dismiss the
majority of TWS’ claims for want of Article III standing. And
we deny TWS’ non-statutory claims resting on NPS’ alleged
failure to develop wilderness management plans, because they
are predicated on unenforceable agency statements of policy.
I. BACKGROUND
On January 15, 2003, TWS filed suit against Gale Norton
in her official capacity as Secretary of the Interior and Fran
Mainella in her official capacity as Director of NPS.
Specifically, TWS “allege[d] a widespread disregard by NPS of
its statutory and regulatory duties to take specific actions to
review and protect wilderness-quality lands in the National Park
System, in violation of the Wilderness Act, 16 U.S.C. §§ 1131-
36, the National Park Service Organic Act, 16 U.S.C. §§ 1-18f-
3, National Park Service Policies and Directives, and the
[Administrative Procedure Act].” Wilderness Soc’y v. Norton,
3
CA No. 03-64, 2005 U.S. Dist. LEXIS 18734, at *2 (D.D.C. Jan.
10, 2005) (emphases omitted).
The facts surrounding TWS’ allegations are discussed at
length in the District Court’s Memorandum Opinion, so we will
not repeat the full statement of facts here. Suffice it to say that
“The Wilderness Society . . . filed a 94-page, 44-count
complaint against the [NPS] . . . for alleged failures to conduct
wilderness assessments, forward wilderness recommendations
to the President, prepare wilderness management plans, revisit
legally-insufficient wilderness assessments, and otherwise to
take required measures to protect wilderness resources in this
country.” Id. at *1. In alleging that NPS has failed to prepare
wilderness management plans, TWS relies on internal agency
policies found in NATIONAL PARK SERVICE, DEPARTMENT OF
INTERIOR, NPS D1416, MANAGEMENT POLICIES 2001 (Dec.
2000) (“MANAGEMENT POLICIES” or “POLICIES”), available at
http://www.nps.gov/refdesk/mp/. See also Director’s Order #41
and NPS Reference Manual #41, available at
http://www.nps.gov/applications/npspolicy/DOrders.cfm. TWS’
suit is based upon § 706(1) of the Administrative Procedure Act
(“APA”), which permits a court to “compel agency action
unlawfully withheld or unreasonably delayed,” 5 U.S.C.
§ 706(1) (2000). Wilderness Soc’y, 2005 U.S. Dist. LEXIS
18734, at *2.
On July 30, 2003, NPS filed a motion for judgment on the
pleadings, see FED. R. CIV. P. 12(c), arguing, inter alia, that the
Society lacks Article III standing; that TWS’ claims regarding
certain statutory deadlines are time-barred; and that the
MANAGEMENT POLICIES cited by TWS embodies nonbinding
declarations of policy issued solely to guide NPS managers and
staff in their duties. On January 10, 2005, the District Court
granted the Government’s motion for judgment on the pleadings
as to all but five counts. Wilderness Soc’y, 2005 U.S. Dist.
LEXIS 18734, at *70-71. The District Court dismissed the
4
counts under the Wilderness Act and the specific enabling
statutes as time-barred pursuant to 28 U.S.C. § 2401(a) (2000),
the six-year statute of limitations for civil actions brought
against the United States. Wilderness Soc’y, 2005 U.S. Dist.
LEXIS 18734, at *24-25. The remaining claims were rejected
for want of merit under 5 U.S.C. § 706(1). Id. at *46-47. TWS
filed a timely notice of appeal, challenging the District Court’s
dismissal of its statutory claims and denial of relief on the bulk
of its claims arising under the MANAGEMENT POLICIES. The
Government did not cross-appeal the orders covering the five
claims on which relief was granted to TWS. And at oral
argument before this court, the Government acknowledged that
NPS is presently complying with the District Court’s orders
relating to these five claims and conceded that no review was
properly sought on these matters.
II. ANALYSIS
A. Statute of Limitations
The District Court dismissed TWS’ claims under the
Wilderness Act and the specific enabling statutes as time-barred
under 28 U.S.C. § 2401(a). Section 2401(a) provides that
“every civil action commenced against the United States shall be
barred unless the complaint is filed within six years after the
right of action first accrues.” The District Court ruled that the
Society’s claims based on violations of the Wilderness Act, 16
U.S.C. § 1132(c) (2000), the Big Cypress National Preserve
Addition Act, 16 U.S.C. § 698l (2000), the Glen Canyon
National Recreation Area Enabling Act, 16 U.S.C. § 460dd-8
(2000), and the California Wilderness Act, Title VI, § 602, Pub.
L. No. 103-433, 108 Stat. 4496-97 (1994), were untimely,
because each claim was brought more than six years after NPS
failed to meet its statutory deadline to perform wilderness
reviews or file and complete legal boundary maps.
5
The Society appeals this ruling on the grounds that the
statute of limitations has not run, because NPS is in continuous
violation of its statutory obligations. TWS also points out that
this court has never applied 28 U.S.C. § 2401(a) in situations
comparable to this case in which a claimant has filed for
mandamus to “compel agency action unlawfully withheld or
unreasonably delayed.” The Government offers no response
and, noticeably, it does not attempt to defend the District Court’s
decision.
Although we need not reach a final determination on this
issue because we find TWS lacks standing as to its statutory
claims, the Society appears to be right in its contention that the
District Court erred in dismissing the counts under the
Wilderness Act and the specific enabling statutes as time-barred
under 28 U.S.C. § 2401(a). This court has repeatedly refused to
hold that actions seeking relief under 5 U.S.C. § 706(1) to
“compel agency action unlawfully withheld or unreasonably
delayed” are time-barred if initiated more than six years after an
agency fails to meet a statutory deadline. For example, in In re
United Mine Workers of America International Union, 190 F.3d
545 (D.C. Cir. 1999), the petitioner sought a writ of mandamus
to compel a division of the Department of Labor to issue final
regulations. The statute required the Secretary of Labor to
promulgate final regulations, or explain her decision not to
promulgate them, within 90 days of a specified date. Id. at 550.
The suit was brought eight years after the agency failed to meet
its deadline. Id. The court nonetheless rejected the agency’s
contention that the suit was time-barred. The court ruled that,
“[b]ecause the [union] does not complain about what the agency
has done but rather about what the agency has yet to do, we
reject the suggestion that its petition is untimely.” Id. at 549.
The decision in In re Bluewater Network, 234 F.3d 1305
(D.C. Cir. 2000), is to the same effect. There the court noted
that the statute “command[ed] the Coast Guard to establish
6
compliance standards. There are none.” Id. at 1315. The court
also noted that it was “faced with a clear statutory mandate, a
deadline nine-years ignored, and an agency that has admitted its
continuing recalcitrance.” Id. at 1316. Notwithstanding that the
statutory deadline had been missed by nine years, the court
found the petition was timely. Id. at 1314.
TWS claims that NPS has chronically failed to undertake
various legal obligations with respect to the identification and
management of “wilderness” in the National Park System. The
Society’s complaint alleges continuing violations by the
Government. It “does not complain about what the agency has
done but rather about what the agency has yet to do,” United
Mine Workers, 190 F.3d at 549. Under these circumstances, it
is unlikely that TWS’ complaint would be held by this court to
be time-barred by 28 U.S.C. § 2401(a).
B. TWS’ Standing
We cannot address the merits of TWS’ claims, however,
unless we are assured that the Society has Article III standing.
See Am. Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir.),
merits reviewed, 406 F.3d 689 (D.C. Cir. 2005). TWS may
bring suit in a representational capacity on behalf of its members
if:
(1) at least one of [its] members has standing to sue in his
or her own right, (2) the interests the association seeks to
protect are germane to its purpose, and (3) neither the claim
asserted nor the relief requested requires the participation of
an individual member in the lawsuit.
Id. On the record here, TWS has failed to satisfy the first
standard with respect to all but its non-statutory claims resting
on NPS’ alleged failure to develop wilderness management
plans.
7
The Court in Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992), explained that
the irreducible constitutional minimum of standing contains
three elements. First, the plaintiff must have suffered an
injury in fact – an invasion of a legally protected interest
which is (a) concrete and particularized; and (b) actual or
imminent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the
conduct complained of – the injury has to be fairly traceable
to the challenged action of the defendant, and not the result
of the independent action of some third party not before the
court. Third, it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.
Id. at 560-61 (internal citations, alterations, and quotation marks
omitted). In order to establish standing, TWS must demonstrate,
as to each of its claims, that at least one member meets the
requirements of Lujan. It has failed to do this with respect to all
but its non-statutory claims resting on NPS’ alleged failure to
develop wilderness management plans.
The Government argues that the affidavits and declarations
filed by TWS fail to establish injury in fact. The majority, they
argue, offer nothing more than conclusory assertions that NPS’
failure to comply with its wilderness mandates injures the
member because it results in degradation of the wilderness areas
he or she frequents. The remaining declarations, according to
the Government, are insufficiently specific in their pleadings.
The Government argues further that, even assuming injury in
fact, the Society cannot establish that its members’ injuries are
fairly traceable to NPS’ alleged failures to act, or that
compelling NPS to take the actions TWS requests would redress
these injuries. We agree that, as to all but its non-statutory
claims resting on NPS’ alleged failure to develop wilderness
8
management plans, TWS has failed to demonstrate injury in fact
or redressability.
Harms to aesthetic and recreational enjoyment of parks may
suffice to create injury for Article III purposes. See Sierra Club
v. Morton, 405 U.S. 727, 734 (1972). “But the ‘injury in fact’
test requires more than an injury to a cognizable interest. It
requires that the party seeking review be himself among the
injured.” Id. at 734-35. The declarations submitted by TWS do
not, in most instances, demonstrate particularized and concrete
injuries necessary to establish Article III standing.
For example, one such declaration states:
I want the undeveloped land assessed for wilderness
suitability in Chaco Culture National Historical Park to
prevent future uses of the land that would be incompatible
with my enjoyment of the Park and the NPS’ mandate to
preserve lands it manages “unimpaired for the use and
enjoyment of future generations.” Among such potential
impairments could be proposals for power line rights-of-
way, transmission towers for communication sites, and new
roads. I will suffer imminent and irreparable harm if the
NPS does not comply with its duty.
Plaintiff’s Memorandum in Response to Defendants’ Motion for
Judgment on the Pleadings, Exhibit F (“Ex. F”), Buono Decl.
¶ 6, Wilderness Soc’y v. Norton, CA No. 03-64 (D.D.C. Jan. 10,
2005). Such “‘general averments’ and ‘conclusory allegations’
[are] inadequate.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 184 (2000) (internal citation
omitted).
Not all of the declarations submitted by the Society are
infirm in their allegations of concrete and particularized injury.
This does not help TWS, however. Even when injury in fact is
demonstrated and the alleged injuries are fairly traceable to
NPS’ failure to comply with its statutory obligations, TWS has
9
failed to show that it is “likely, as opposed to merely
speculative, that the injur[ies] will be redressed by a favorable
decision.” Lujan, 504 U.S. at 561 (internal citations and
quotation marks omitted).
The redressability inquiry poses a simple question: “[I]f
plaintiffs secured the relief they sought, . . . would [it] redress
their injury”? Mountain States Legal Found. v. Glickman, 92
F.3d 1228, 1233 (D.C. Cir. 1996). TWS seeks three types of
relief with respect to which it cannot show redressability. First,
in relation to two parks, Glen Canyon National Recreation Area
and Lake Mead National Recreation Area, TWS asks the court
to order NPS to forward its completed wilderness
recommendations to the President. Second, the Society asks for
an order compelling the Park Service to complete a legal
description and wilderness boundary map of designated
wilderness in Death Valley National Park. Third, TWS seeks an
order to compel the agency to complete wilderness suitability
assessments for 11 parks. Because TWS is required to
“demonstrate standing separately for each form of relief
sought,” Friends of the Earth, 528 U.S. at 185, we consider its
standing in relation to each of these requests in turn, focusing
specifically on the question of redressability. And, as to each
claim, we hold that appellant lacks standing for want of
redressability.
1. NPS’ Alleged Failure to Forward Reports to the
President
TWS seeks an order requiring NPS to forward to the
President the agency’s completed wilderness recommendations
for Glen Canyon National Recreation Area and Lake Mead
National Recreation Area. There is no good reason to believe
that such an order will redress TWS’ injuries. No legal
consequences flow from the recommendations. Even if this
court were to order NPS to forward its recommendations to the
President, it would still be up to Congress to decide whether to
10
designate the cited lands as wilderness. See 16 U.S.C. § 1132(c)
(Wilderness Act); 16 U.S.C. § 460dd-8 (Glen Canyon National
Recreation Area Reporting Provision).
Congress has no obligation to consider the President’s
recommendations, should he offer any, let alone act upon them.
And no order from this court requiring NPS to submit
recommendations to the President in the hope that he will in turn
forward them to Congress will change this situation. See
Guerrero v. Clinton, 157 F.3d 1190, 1191 (9th Cir. 1998)
(holding where “reports [to Congress] themselves trigger no
legal consequences,” any injury allegedly incurred by the
absence of reporting “is . . . not redressable”). In short, the
judicial order that TWS requests will not afford it the redress it
seeks.
2. NPS’ Alleged Failure to Complete a Legal
Description and Boundary Map for Death Valley
National Park
TWS similarly cannot establish redressability with respect
to its request for an order compelling NPS to complete a legal
description and boundary map of designated wilderness in Death
Valley National Park. In other words, the member injuries cited
by TWS will not be redressed by the relief requested.
TWS submitted the declaration of Ms. Wold, which asserts
that she is a member of TWS and that she spends significant
time in Death Valley National Park. Ex. F, Wold Decl. ¶¶ 1, 4.
The declaration states further that, in December 2002, Ms. Wold
and her family had planned five park adventures for the coming
year. Id. ¶ 4. The declaration identifies the particular parts of
the park that Ms. Wold has frequented in the past, as well as the
areas that she plans to frequent over the next year. Id. Ms.
Wold then asserts the following purported injuries:
I want the Park [Service] to fulfill its obligations to
complete final boundary maps and wilderness legal
11
descriptions for Death Valley National Park in order to
prevent uses of the land that are incompatible with my
enjoyment of the Park. Off-road vehicle (ORV) ingress is
a constant threat to the Park. A Toyota 4WD vehicle was
abandoned in Butte Valley, located in the Park, the last time
we were hiking in the area. Abandoned vehicles and
vehicle parts have violated the beauty of park areas like
Surprise Canyon [an area of Death Valley she has
frequented], and its delicate riparian area.
....
NPS’s failure to comply with its wilderness responsibilities
harms my ability to use and enjoy Death Valley National
Park as wilderness because most citizens do not realize that
95% of the park was designated as wilderness on October
31, 1994. Without maps, to most people with 4WD
vehicles, a dirt tract is a road to be traveled – and travel it
they will.
Id. ¶¶ 7, 9.
It simply defies reason to think that a court order
compelling NPS to issue final boundary maps and legal
descriptions of Death Valley National Park will reduce off-road
vehicle abuses of the wilderness. Indeed, 95% of the park
already has been designated “wilderness,” so the identification
of protected areas is hardly an issue of any moment. There is no
reason to believe (and TWS cites none) that maps and
descriptions of the park will curb off-road vehicle abuses. TWS
has thus failed to show that it is “likely, as opposed to merely
speculative,” that the injuries cited by Ms. Wold “will be
redressed by a favorable decision” on this issue. Lujan, 504
U.S. at 561 (internal citations and quotation marks omitted).
12
3. NPS’ Alleged Failure to Review Lands for
Wilderness Suitability
TWS also seeks a court order compelling NPS to review
lands for wilderness suitability pursuant to 16 U.S.C. § 1132(c)
in the Wilderness Act. Section 1132(c) states:
Within ten years after September 3, 1964 the Secretary of
the Interior shall review every roadless area of five
thousand contiguous acres or more in the national parks,
monuments and other units of the national park system and
every such area of, and every roadless island within the
national wildlife refuges and game ranges, under his
jurisdiction on September 3, 1964 and shall report to the
President his recommendation as to the suitability or
nonsuitability of each such area or island for preservation
as wilderness. The President shall advise the President of
the Senate and the Speaker of the House of Representatives
of his recommendation with respect to the designation as
wilderness of each such area or island on which review has
been completed, together with a map thereof and a
definition of its boundaries. Such advice shall be given with
respect to not less than one-third of the areas and islands to
be reviewed under this subsection within three years after
September 3, 1964, not less than two-thirds within seven
years of September 3, 1964 and the remainder within ten
years of September 3, 1964. A recommendation of the
President for designation as wilderness shall become
effective only if so provided by an Act of Congress.
Nothing contained herein shall, by implication or otherwise,
be construed to lessen the present statutory authority of the
Secretary of the Interior with respect to the maintenance of
roadless areas within units of the national park system.
16 U.S.C. § 1132(c). TWS points out that special protections
are afforded “wilderness” areas, see 16 U.S.C. § 1133, and that
these protections would redress the Society’s injuries. The
13
problem, however, is that it is clear from 16 U.S.C. § 1132(c)
that only Congress can designate lands as wilderness.
Unsurprisingly, TWS argues that the likelihood of an area
attaining “wilderness” designation is increased if NPS or the
Secretary of Interior submit a suitability recommendation to the
President, who in turn may then submit a recommendation to
Congress. The analysis is too attenuated, however. As noted
above, an order from this court requiring NPS to submit
recommendations to the President in the hope that he will in turn
forward them to Congress does not make it “likely, as opposed
to merely speculative,” that the injuries cited by TWS “will be
redressed by a favorable decision.” Lujan, 504 U.S. at 561
(internal citations and quotation marks omitted).
TWS fares no better with reference to the individual park
enabling acts or the MANAGEMENT POLICIES itself. NPS has no
final authority under these acts to designate an area as
wilderness. See, e.g., Big Cypress National Preserve Addition
Act, 16 U.S.C. § 698l. An order from this court cannot make
Congress designate an area as wilderness, so the redress that
TWS seeks cannot be found with the judiciary. A suitability
assessment undertaken pursuant to the MANAGEMENT POLICIES
similarly does not create a designation as wilderness.
TWS responds that, under the agency’s POLICIES, NPS has
committed itself to managing areas as if they are wilderness
once it commences to review lands for wilderness suitability.
TWS points us to § 6.3.1 of the MANAGEMENT POLICIES, which
states, in part, that “[NPS] will take no action that would
diminish the wilderness suitability of an area possessing
wilderness characteristics until the legislative process of
wilderness designation has been completed.” MANAGEMENT
POLICIES, § 6.3.1, supra, at 65 (emphasis added). We do not
view this policy statement as a commitment by NPS to manage
areas as if they are wilderness once the agency commences
14
review of lands for wilderness suitability. And there is certainly
no statutory or case law support for this contention.
More importantly, even under the policy statement cited by
TWS, it is clear that NPS has wide discretion to decide how to
proceed to “take no action that would diminish the wilderness
suitability of an area possessing wilderness characteristics.” Id.
TWS has not demonstrated that an order from this court
compelling NPS to review lands for wilderness suitability would
change NPS’ management of the land in ways that would
redress the injuries its members allege. For example, TWS has
not shown that various types of motorized vehicles which
allegedly degrade the wilderness that its members use would be
prohibited by NPS so as not to diminish wilderness suitability.
The point is that the existence of various nonconforming uses,
such as logging, farming, mining, and even utility lines, in some
situations, on lands possessing wilderness characteristics does
not per se preclude a recommendation from the Park Service
that the area is wilderness suitable and should be designated as
wilderness. See MANAGEMENT POLICIES, § 6.2.1.2, supra, at 64.
In short, TWS has not shown that NPS has committed itself
to managing areas as if they are wilderness once it commences
a review of lands for wilderness suitability. Had the Wilderness
Act provided that NPS must manage wilderness-suitable areas
as if they were designated wilderness, i.e., conforming to the
prohibitions and protections of the Wilderness Act, then TWS’
alleged injuries might have been redressable. Nothing in the
statute, however – indeed, nothing in the MANAGEMENT
POLICIES – requires this.
Put differently, TWS lacks standing because it has not
presented a situation comparable to those covered by
Telecommunications Research & Action Center v. FCC, 750
F.2d 70 (D.C. Cir. 1984) (“TRAC”). In a paradigmatic TRAC
case, a petitioner seeks to compel agency action that the
petitioner claims is legally required and that directly affects the
15
party before the court. When the agency then acts pursuant to
a TRAC order, the petitioner will either secure the redress sought
or have a final order on the merits from the agency that will be
subject to judicial review. This case would be covered by TRAC
if, hypothetically, TWS’ claim arose because the agency had
failed to comply with a statutory provision under the Wilderness
Act requiring NPS to make a determination on the merits of a
concrete wilderness proposal within a precise time frame and a
positive determination would redress the particularized injuries
of TWS’ members. We have no such situation here.
C. The Non-Statutory Claims Relating to NPS’ Alleged
Failure to Promulgate Management Plans
Finally, TWS requests this court to order the agency to
provide public notice and complete wilderness management
plans in accordance with § 6.3.4.2 of the MANAGEMENT
POLICIES. In advancing this claim, TWS focuses on four parks
that have been designated as wilderness by Congress, three that
are in various stages of the designation process, and one that is
partially designated and partially in the process of designation.
The POLICIES provides, in pertinent part:
The superintendent of each park containing wilderness
resources will develop and maintain a wilderness
management plan or equivalent planning document to guide
the preservation, management, and use of these resources.
The wilderness management plan will identify desired
future conditions, as well as establish indicators, standards,
conditions, and thresholds beyond which management
actions will be taken to reduce human impacts to wilderness
resources.
. . . Wilderness management plans will be supported by
appropriate documentation of compliance with NEPA and
NHPA. The plan will be developed with public
involvement, and will contain specific, measurable
16
management objectives that address the preservation and
management of natural and cultural resources within
wilderness as appropriate to achieve the purposes of the
Wilderness Act and other legislative requirements.
MANAGEMENT POLICIES, § 6.3.4.2, supra, at 66; see id. § 6.3.1,
supra, at 65 (“For the purposes of applying these policies, the
term ‘wilderness’ will include the categories of suitable, study,
proposed, recommended, and designated wilderness.”); accord
NPS Reference Manual #41, supra, at 32.
TWS’ request for an order compelling NPS to create
management plans, unlike its other claims, does not fail for want
of standing. TWS’ member affidavits covering the cited parks
are, for the most part, sufficient to establish injury in fact. These
affidavits aver that the members’ use and enjoyment of the parks
in question have been impaired by the degradation of these
lands. See, e.g., Ex. F., Wold Decl. ¶¶ 7, 9; Ex. F., McNulty
Decl. ¶ 6. Moreover, the injuries cited are fairly traceable to
NPS. That is, insofar as it is reasonable to assume that enforced
regulations would affect how the parks are used and maintained,
the agency’s alleged failures to regulate and manage the
disputed land areas through wilderness management plans are
the causes of the alleged degradation of these lands. See
Mountain States Legal Found., 92 F.3d at 1234-35 (allegation
that government’s choice among several alternatives for timber
harvesting in national forest resulted in under-regulation and
thereby created an increased risk of catastrophic wildfire was
found not speculative). And it is not unreasonable to assume
that a court order compelling NPS to create viable management
plans would redress many of the injuries allegedly suffered by
TWS members.
We therefore conclude that TWS has Article III standing to
pursue claims resting on the agency’s alleged failure to comply
with § 6.3.4.2 of the MANAGEMENT POLICIES. It does not matter
whether, in the end, TWS’ claims lack merit. A defect in the
17
merits of a party’s claim is not the basis upon which to
determine standing. And “no court in the modern era has treated
a garden-variety substantive defect in [a party’s] claim as
defeating redressability.” Mountain States Legal Found., 92
F.3d at 1234.
Although we find that TWS has standing to pursue its
challenge to NPS’ failure to develop management plans, we hold
that these claims fail on the merits. The only ground offered by
TWS to support its claim that NPS is legally obliged to provide
management plans is § 6.3.4.2 of the MANAGEMENT POLICIES.
The Government contends that the POLICIES does not embody
rules that are enforceable against the agency; rather, according
to the Government, the POLICIES provides only internal guidance
for NPS managers and staff. We agree.
TWS argues that the binding nature of the POLICIES was
settled in Davis v. Latschar, 202 F.3d 359 (D.C. Cir. 2000). We
are unconvinced. In Davis, the court accepted an “assertion”
that NPS intended to be bound by the MANAGEMENT POLICIES,
because the assertion was uncontested. Id. at 366 n.4. The
matter was not in dispute, so the court had no occasion to render
a final judgment on the issue. The issue is squarely posed in this
case, however, and the Government strenuously argues that the
agency did not intend to establish binding rules when it
promulgated the MANAGEMENT POLICIES.
In determining whether an agency has issued a binding
norm or merely a statement of policy, we are guided by two
lines of inquiry. “One line of analysis focuses on the effects of
the agency action,” asking whether the agency has “(1)
‘impose[d] any rights and obligations,’ or (2) ‘genuinely [left]
the agency and its decisionmakers free to exercise discretion.’”
CropLife Am. v. EPA, 329 F.3d 876, 883 (D.C. Cir. 2003)
(quoting Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C.
Cir. 1987) (per curiam)). “[T]he language actually used by the
agency” is often central to making such determinations. Cmty.
18
Nutrition Inst., 818 F.2d at 946. “The second line of analysis
focuses on the agency’s expressed intentions.” CropLife Am.,
329 F.3d at 883. The analysis under this line of cases “look[s]
to three factors: (1) the [a]gency’s own characterization of the
action; (2) whether the action was published in the Federal
Register or the Code of Federal Regulations; and (3) whether the
action has binding effects on private parties or on the agency.”
Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999).
Under either line of analysis, the MANAGEMENT POLICIES is a
statement of policy, not a codification of binding rules.
While the text of the POLICIES on occasion uses mandatory
language, such as “will” and “must,” the document as a whole
does not read as a set of rules. It lacks precision in its directives,
and there is no indication of how the enunciated policies are to
be prioritized.
It is particularly noteworthy that NPS did not issue its
MANAGEMENT POLICIES through notice and comment
rulemaking under 5 U.S.C. § 553 of the APA. Although the
agency twice gave notice in the Federal Register of proposed
policies, it never published a final version of the POLICIES in
either the Federal Register or, more significantly, in the Code of
Federal Regulations.
Failure to publish in the Federal Register is indication that
the statement in question was not meant to be a regulation
since the [APA] requires regulations to be so published.
The converse, however, is not true: Publication in the
Federal Register does not suggest that the matter published
was meant to be a regulation, since the APA requires
general statements of policy to be published as well. The
real dividing point between regulations and general
statements of policy is publication in the Code of Federal
Regulations, which the statute authorizes to contain only
documents “having general applicability and legal effect,”
and which the governing regulations provide shall contain
19
only “each Federal regulation of general applicability and
current or future effect.”
Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39
(D.C. Cir. 1986) (internal citations omitted). The
MANAGEMENT POLICIES never has been published in the Code
of Federal Regulations.
The agency’s characterization of the MANAGEMENT
POLICIES in the Federal Register is also telling. In its January
2000 announcement that a draft document was ready for public
comment, the agency explained that “[p]ark superintendents,
planners, and other NPS employees use management policies as
a reference source when making decisions that will affect units
of the national park system.” Notice of Availability of Draft
National Park Service Management Policies, 65 Fed. Reg. 2984
(Jan. 19, 2000). This statement is consistent with the
Introduction to the POLICIES which makes it clear that the
agency has retained unfettered discretion to act as it sees fit with
respect to the actions outlined in the POLICIES, including the
development of wilderness management plans. The Introduction
states:
Adherence to policy is mandatory unless specifically
waived or modified in writing by the Secretary, the
Assistant Secretary, or the Director.
MANAGEMENT POLICIES, Introduction, supra, at 5. This
language does not evidence an intent on the part of the agency
to limit its discretion and create enforceable rights. Rather, the
agency’s top administrators clearly reserved for themselves
unlimited discretion to order and reorder all management
priorities. This supports the Government’s contention that the
POLICIES is no more than a set of internal guidelines for NPS
managers and staff.
Finally, it is significant that TWS points to no statutory
provision requiring NPS to develop wilderness management
20
plans. Neither the Wilderness Act nor the agency’s organic act
requires wilderness management plans. The fact that the
MANAGEMENT POLICIES does not emanate from a congressional
mandate further supports the conclusion that it was not meant
to establish binding norms.
We find that, on the basis of the foregoing considerations,
the conclusion is inescapable that the MANAGEMENT POLICES is
a nonbinding, internal agency manual intended to guide and
inform Park Service managers and staff. There is no indication
that the agency meant for these internal directives to be
judicially enforceable at the behest of members of the public
who question the agency’s management. For us to hold
otherwise on this record would not only be contrary to our case
law, but it would chill efforts by top agency officials to gain
control over their bureaucratic charges through internal
directives. In sum, the MANAGEMENT POLICIES is exactly what
it appears to be, a guidance manual for NPS managers and staff
that does not create enforceable regulations or modify existing
legal rights.
III. CONCLUSION
For the reasons indicated above, we hereby dismiss the
majority of TWS’ claims for want of Article III standing, and we
deny TWS’ remaining non-statutory claims because they are
predicated on unenforceable agency statements of policy.
The Government did not cross-appeal the District Court’s
orders covering five claims on which relief was granted to TWS.
We offer no judgment on these matters. Government counsel
acknowledged that NPS is presently complying with the District
Court’s orders relating to these five claims and conceded that no
review was properly sought on these matters.
So ordered.