United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 2009 Decided June 5, 2009
No. 08-5131
MONTANANS FOR MULTIPLE USE, A NOT-FOR-PROFIT
ORGANIZATION, ET AL.,
APPELLANTS
v.
CATHY BARBOULETOS, FLATHEAD NATIONAL FOREST
SUPERVISOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-01244-TFH)
Mark L. Pollot argued the cause and filed the brief for
appellant. Robin W. Grover entered an appearance.
Michael T. Gray, Attorney, U.S. Department of Justice,
argued the cause for federal appellee. Mary G. Sprague,
Attorney, U.S. Department of Justice, and R. Craig Lawrence,
Assistant U.S. Attorney, entered appearances.
Timothy M. Bechtold was on the brief for intervenors-
appellees. Erin D. Lieberman entered an appearance.
2
Before: GINSBURG and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Several Montana
organizations and citizens are concerned about the U.S. Forest
Service’s management of the federally owned Flathead
National Forest in northwest Montana. They want more of
the forest to be made available for timbering and recreational
activities. They filed a lawsuit against the Forest Service. A
variety of environmental groups intervened against plaintiffs
on the side of the Forest Service. Agreeing with the Forest
Service and the environmental groups, the District Court
dismissed plaintiffs’ complaint. We affirm because plaintiffs
cannot establish that the Forest Service has violated any
federal law or otherwise taken action that is arbitrary and
capricious under the Administrative Procedure Act. On the
contrary, it is clear that plaintiffs’ grievance lies with legally
permissible policy decisions made by Congress and the Forest
Service. Plaintiffs’ plea for a new approach to management
of the Flathead Forest is therefore best directed to the
Legislative and Executive Branches.
I
The Flathead National Forest occupies 2.3 million acres
of land in northwest Montana. The United States Forest
Service, an agency of the Department of Agriculture,
manages Flathead.
Two venerable statutes set forth the Forest Service’s
management goals: the Organic Administration Act of 1897,
16 U.S.C. § 475, and the Multiple-Use Sustained-Yield Act of
1960, 16 U.S.C. §§ 528 et seq. The Organic Administration
3
Act instructs the Forest Service to administer national forests
so as to secure favorable conditions of water flows and to
furnish the country with a continuous supply of timber. 16
U.S.C. § 475. The Multiple-Use Sustained-Yield Act adds
“outdoor recreation, range, timber, watershed, and wildlife
and fish purposes” to the list of management objectives. Id. §
528. In addition, that Act requires the Forest Service to
develop and administer the national forests’ renewable
surface resources “for multiple use and sustained yield of the
several products and services obtained therefrom.” Id. § 529.
The National Forest Management Act of 1976, 16 U.S.C.
§§ 1600 et seq., establishes a two-stage process by which the
U.S. Forest Service must pursue those statutory goals. At the
initial stage, the Forest Service develops a Land and Resource
Management Plan, also called a forest plan. Id. § 1604(a).
The Forest Service may amend those plans “in any manner
whatsoever after final adoption,” provided that changes
deemed “significant” meet certain substantive and procedural
requirements. Id. § 1604(f)(4). The Forest Service must
formally revise the plans at least once every 15 years –
although since 2001, Congress has repeatedly extended the
15-year deadlines. Id. § 1604(f)(5); e.g., Pub. L. No. 111-8, §
410, 123 Stat. 524 (2009). At the second stage, the Forest
Service analyzes and authorizes site-specific projects
consistent with the governing plan. Id. § 1604(i); see also
Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 729
(1998).
The Forest Service issued a forest plan for Flathead in
1986. For the past several years, the Service has been in the
process of revising the Plan.
As relevant here, plaintiffs raised four claims in the
District Court related to the Forest Service’s management of
4
Flathead. First, plaintiffs complained that the Forest Service
generally managed the Forest in violation of the National
Forest Management Act and the 1986 Flathead Plan. Second,
plaintiffs alleged that the Forest Service has delayed too long
in issuing a revised forest plan. Third, plaintiffs accused the
Forest Service of improperly closing various roads and trails
in the forest. Fourth, plaintiffs contended that the Forest
Service has repeatedly amended the 1986 Plan without
complying with certain congressional reporting duties
imposed by the Small Business Regulatory Enforcement
Fairness Act, 5 U.S.C. §§ 801 et seq.
In a thorough opinion, the District Court dismissed
plaintiffs’ complaint. Our review is de novo.
II
In this Court, plaintiffs again advance four arguments.
First, plaintiffs allege that the Secretary failed to carry
out management activities in accordance with the National
Forest Management Act and the 1986 Forest Plan. In their
submission to this Court, plaintiffs characterize this as a
failure-to-act cause of action under the Administrative
Procedure Act. 5 U.S.C. § 706(1). But plaintiffs’ complaint
does not identify a legally required, discrete act that the
Forest Service has failed to perform – a threshold requirement
for a § 706 failure-to-act claim. See Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 64 (2004). Plaintiffs
contend only that the Forest Service neglected its general
statutory and regulatory obligations to manage the forest so as
to provide for multiple uses and a sustained yield of
resources. See 16 U.S.C. §§ 1604(e)(1), 1606 note. Such
conclusory statements amount to nothing more than
allegations of general “deficiencies in compliance” that “lack
the specificity requisite for agency action.” S. Utah
5
Wilderness Alliance, 542 U.S. at 66. Plaintiffs’ allegations
therefore do not support judicial action under § 706(1).
Second, plaintiffs contend that the Forest Service violated
the National Forest Management Act by failing to timely
revise the 1986 Flathead Forest Plan. As plaintiffs correctly
point out, the Act requires that the Forest Service revise forest
plans “at least every fifteen years,” which here would mean
by 2001. 16 U.S.C. § 1604(f)(5)(A). The problem for
plaintiffs is that Congress has repeatedly extended that
deadline. The latest extension – passed by Congress and
signed into law by President Obama on March 11, 2009 –
provides that “[p]rior to October 1, 2009, the Secretary of
Agriculture shall not be considered to be in violation of . . . 16
U.S.C. 1604(f)(5)(A) . . . solely because more than 15 years
have passed without revision of the plan for a unit of the
National Forest System.” Pub. L. No. 111-8, § 410, 123 Stat.
524, 746 (2009).
To be sure, that latest statutory extension – like the six
previous ones Congress enacted starting in 2001 – also states
that “if the Secretary is not acting expeditiously and in good
faith, within the funding available, to revise a plan for a unit
of the National Forest System,” the extension “shall be void
with respect to such plan and a court of proper jurisdiction
may order completion of the plan on an accelerated basis.”
Id. But by enacting repeated extensions, Congress has
necessarily concluded that some delays in revising forest
plans are justified. Because Congress just enacted the latest
extension on March 11, 2009 (in effect, pardoning delays
before that date) plaintiffs presumably have to show that the
Forest Service has not acted expeditiously and in good faith
since that date – that is, during the last three months. See
Biodiversity Assocs. v. Forest Service, 226 F. Supp. 2d 1270,
1300 (D. Wyo. 2002). Plaintiffs offer no suggestion to that
6
effect. And even if the period since 2001 were the relevant
timeframe for assessing the Service’s actions, plaintiffs have
failed to allege facts that come close to sufficiently alleging
either bad faith or lack of expedition. (Therefore, we need
not decide whether the statutory extension provision requires
a showing of (i) a lack of expedition and bad faith or (ii) a
lack of expedition or bad faith.) As the District Court
correctly explained, the Forest Service has not ignored its
obligation to revise the Flathead Plan. The complicated
process to revise the Plan has been underway for several years
as the Forest Service works to evaluate and incorporate new
scientific, environmental, and economic information. Some
delay has been occasioned, moreover, by other litigation over
which the Forest Service has no control. In sum, plaintiffs’
allegations provide no basis for finding that the Forest Service
has not acted expeditiously and in good faith in attempting to
revise the Plan.
Plaintiffs may be frustrated with the seven congressional
extensions of the 2001 deadline for a new Flathead Forest
Plan. But their frustration is the result of explicit action by
multiple Congresses and two Presidents – and cannot be
redressed by the Judiciary in this Administrative Procedure
Act lawsuit.
Third, plaintiffs argue that the Forest Service illegally
closed certain roads and trails in the Flathead Forest.
According to plaintiffs, actions by the Service are subject to
“valid existing rights.” Federal Land Management Policy Act
of 1976, Pub. L. No. 94-579, § 701(h), 90 Stat. 2743 (codified
in scattered sections of 43 & 16 U.S.C.). Plaintiffs argue that
this statutory provision prohibits the Service from closing
roads that do not belong to the United States. As relief for
this claim, plaintiffs want ownership of the roads and trails;
they do not seek compensation for any alleged taking of their
7
property. The upshot is that plaintiffs are necessarily
challenging the United States’ title to the lands. But such a
claim must proceed under the Quiet Title Act, 28 U.S.C. §
2409a. The Quiet Title Act provides “the exclusive means by
which adverse claimants [may] challenge the United States’
title to real property.” Block v. North Dakota, 461 U.S. 273,
286 (1983); see also Shawnee Trail v. Dep’t of Agric., 222
F.3d 383, 387-88 (7th Cir. 2000); Hat Ranch, Inc. v. Babbitt,
932 F. Supp. 1, 2-3 (D.D.C. 1995), aff’d sub nom. Hat Ranch,
Inc. v. United States, 102 F.3d 1272 (D.C. Cir. 1996) (per
curiam) (unpublished). Because plaintiffs’ complaint does
not assert a cause of action under the Quiet Title Act, their
argument regarding the road and trail closures is unavailing.*
Fourth, plaintiffs ask the Court to invalidate an
unspecified number of previous Forest Service amendments
to the Flathead Plan because the Service allegedly failed to
satisfy the reporting requirement contained in the Small
Business Regulatory Enforcement Fairness Act of 1996. That
Act provides: “Before a rule can take effect, the Federal
agency promulgating such rule shall submit,” among other
things, a copy of the rule “to each House of the Congress and
to the Comptroller General.” 5 U.S.C. § 801(a)(1)(A). The
Act, however, also states that “[n]o determination, finding,
action, or omission under this chapter shall be subject to
judicial review.” Id. § 805. That latter provision denies
courts the power to void rules on the basis of agency
noncompliance with the Act. The language of § 805 is
unequivocal and precludes review of this claim – even
*
To the extent plaintiffs suggested at oral argument that the
Forest Service acted in an arbitrary and capricious manner in
closing certain roads, plaintiffs did not develop that argument in
their brief, and the complaint does not include such a cause of
action. We therefore do not consider it.
8
assuming that the plan amendments qualify as rules subject to
the Act in the first place.
***
We affirm the judgment of the District Court dismissing
plaintiffs’ complaint.
So ordered.