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No. 03-109

In the Supreme Court of the United States

ANN M. VENEMAN,
SECRETARY OF AGRICULTURE, ET AL., PETITIONERS

v.

MONTANA WILDERNESS ASSOCIATION, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

 

THEODORE B. OLSON
Solicitor General
Counsel of Record
THOMAS L. SANSONETTI
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY BOSSERT CLARK
Deputy Assistant Attorney
General
BARBARA MCDOWELL
Assistant to the Solicitor
General
ANDREW MERGEN
ELLEN DURKEE
TAMARA ROUNTREE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

NANCY C. BRYSON
General Counsel
Department of Agriculture
Washington, D.C. 20240

QUESTION PRESENTED

Whether the authority of the federal courts under the Administrative Procedure Act, 5 U.S.C. 706(1), to "compel agency action unlawfully withheld or unreasonably delayed" extends to review of the adequacy of an agency's ongoing management of public lands under general statutory standards.

PARTIES TO THE PROCEEDINGS

The petitioners in this Court are Ann M. Veneman, Secretary of Agriculture; the United States Forest Service; Dale Bosworth, Chief, United States Forest Service; and Brad Powell, Regional Forester for Region One, United States Forest Service. The respondents are:

Montana Wilderness Association, Inc.

Friends of the Bitterroot, Inc.
American Wildlands, Inc.
Middlefork Property Owners Association
Blue Ribbon Coalition, Inc.
Montana Snowmobile Association
Montana 4x4 Association
High Country Trail Riders Association
Montana Trail Vehicle Riders Association
Rimrock 4x4, Inc.
Montana High Country Tours
Bitterroot Adventures
Sneed's Cycle and Sled

No. 03-109

ANN M. VENEMAN,
SECRETARY OF AGRICULTURE, ET AL., PETITIONERS

v.

MONTANA WILDERNESS ASSOCIATION, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Secretary of Agriculture and the other federal parties, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-11a) is reported at 314 F.3d 1146. The opinion of the district court (App., infra, 12a-30a) is reported at 146 F. Supp. 2d 1118.

JURISDICTION

The judgment of the court of appeals was entered on January 6, 2003. A petition for rehearing and rehearing en banc was denied on April 23, 2003 (App., infra, 31a-32a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Section 706 of Title 5 provides, in pertinent part:

The reviewing court shall-

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be-

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

STATEMENT

This case concerns the scope of the federal courts' authority under the Administrative Procedure Act (APA) to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. 706(1). The Ninth Circuit held that a plaintiff may invoke Section 706(1) to challenge the adequacy of an agency's day-to-day management of public lands. While recognizing that such ongoing programmatic activity is not "agency action" that may be reviewed under Section 706(2), the Ninth Circuit nonetheless held that such activity is "agency action" that may be reviewed under Section 706(1).

1. Congress enacted the Montana Wilderness Study Act of 1977, Pub. L. No. 95-150, 91 Stat. 1243, "to provide for the study of certain lands to determine their suitability for designation as wilderness." The Act established nine wilderness study areas totaling approximately 960,000 acres. The Act states that the wilderness study areas "shall, until Congress determines otherwise, be administered by the Secretary of Agriculture so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System." § 3(a), 91 Stat. 1244. The Act does not further define that standard.

The Secretary of Agriculture administers the Montana wilderness study areas, of which there are now seven, through the Forest Service. See App., infra, 3a.

2. In 1996, the Montana Wilderness Association and other organizations (collectively MWA), which are among the respondents here, filed suit under the APA against the Secretary of Agriculture, the Forest Service, and Forest Service officials. MWA claimed that the Forest Service's "actions and inactions" had resulted in increased motorized vehicle use in the wilderness study areas, which, in turn, had resulted in environmental and aesthetic damage to the areas, diminishing the areas' wilderness character and potential for inclusion in the Wilderness System. App., infra, 14a. MWA also challenged certain maintenance activities undertaken by the Forest Service in two areas, such as the upkeep and improvement of trails, alleging that those activities had produced increased motorized vehicle use in those areas. MWA sought to compel the Forest Service to take action "unlawfully withheld or unreasonably delayed" under Section 706(1) of the APA, and to set aside action taken by the Forest Service as an abuse of discretion under Section 706(2) of the APA.

The district court granted summary judgment for MWA. App., infra, 12a-30a. The court construed the Montana Wilderness Study Act to require the Forest Service to maintain each wilderness study area's "wilderness character and potential for inclusion in the National Wilderness Preservation System" as it existed in 1977. Id. at 20a-22a. The court, after concluding that the Forest Service had not managed the wilderness study areas under that standard, held that "the Forest Service has 'unlawfully withheld or unreasonably delayed' its maintenance of the Montana Wilderness Study Areas' 1977 wilderness character." Id. at 27a (quoting 5 U.S.C. 706(1)).

Similarly, with respect to MWA's challenges to the Forest Service's maintenance activities in two wilderness study areas, the district court held that the Forest Service "has unlawfully withheld or unreasonably delayed its maintenance of the areas' 1977 wilderness character." App., infra, 27a. The court further held that, to the extent that MWA was challenging maintenance work already performed by the Forest Service, the Forest Service had acted arbitrarily, capriciously, and "short of statutory right" under Section 706(2) of the APA. Ibid.*

As a remedy, the district court enjoined the Forest Service "from taking any action in any Montana Wilderness Study Area that diminishes the wilderness character of the area as it existed in 1977 or that diminishes the area's potential for inclusion in the National Wilderness Preservation System." App., infra, 30a. The court further enjoined the Forest Service "to take reasonable steps to restore the wilderness character of any Montana Wilderness Study Area as it existed in 1977 if the area's wilderness character or its potential for inclusion in the National Wilderness Preservation System has been diminished since 1977." Ibid.

3. The court of appeals affirmed in part, reversed in part, and remanded for further proceedings. App., infra, 1a-11a.

The court of appeals first held that "the Forest Service's trail maintenance and improvement work" in the two wilderness study areas was not final "agency action" reviewable under Section 706(2) of the APA. App., infra, 6a. The court reasoned that such activities do "not fit into any of the statutorily defined categories for agency action"-i.e., "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." Id. at 7a (quoting 5 U.S.C. 551(13)). The court further reasoned that such activities do "not 'mark the consummation of the [Forest Service's] decision making process,'" but instead are "merely an interim aspect of the planning process." Id. at 6a-7a (quoting Bennett v. Spear, 520 U.S. 154, 177 (1997)).

The court of appeals held, however, that the Forest Service's overall management of all seven wilderness study areas, as well as its maintenance work in the two wilderness study areas, could be reviewed under Section 706(1) for compliance with the general requirements of the Montana Wilderness Study Act. App., infra, 7a-11a. The court reasoned that "the Forest Service's duty to maintain wilderness character and potential is a nondiscretionary, mandatory duty that it may be compelled to carry out under section 706(1)." Id. at 9a. The court further reasoned that "[t]he simple fact that the Forest Service has taken some action to address [that statutory standard] is not sufficient to remove this case from section 706(1) review." Id. at 9a-10a. The court did not specifically address the government's argument that "review can occur under Section 706(1) only where an agency has unreasonably delayed or withheld some agency action that is itself a reviewable final agency action." Gov't C.A. Br. 28.

The court of appeals concluded that a genuine issue of material fact existed concerning "whether the Forest Service has discharged its duty to administer the Study Areas so as to maintain their wilderness character and potential for inclusion in the Wilderness System." App., infra, 10a. Accordingly, the court reversed the grant of summary judgment with respect to all of MWA's claims, vacated the injunction, and remanded for trial on the Section 706(1) issues. Id. at 10a-11a.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit held in this case that 5 U.S.C. 706(1) authorizes judicial review of the Forest Service's day-to-day management of vast expanses of public lands under the general statutory requirement "to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System." Montana Wilderness Study Act of 1977, Pub. L. No. 95-150, § 3(a), 91 Stat. 1244. The Tenth Circuit recently issued a comparable holding in Southern Utah Wilderness Alliance v. Norton, 301 F.3d 1217, 1227-1233 (2002), concluding that Section 706(1) authorizes judicial review of an agency's ongoing management of public lands under the general statutory requirement "not to impair the suitability of such areas for preservation as wilderness," 43 U.S.C. 1782(c). The government and private parties have sought this Court's review of the Tenth Circuit's decision. See Norton v. Southern Utah Wilderness Alliance, petition for cert. pending, No. 03-101 (filed July 18, 2003); Utah Shared Access Alliance v. Southern Utah Wilderness Alliance, petition for cert. pending, No. 02-1703 (filed May 19, 2003). This petition should be held pending the disposition of the petitions in Southern Utah Wilderness Alliance.

Section 706 of the APA states, in pertinent part, that "[t]he reviewing court shall-(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be" invalid on specified grounds. 5 U.S.C. 706. Section 551(13), in turn, defines "agency action" as "includ[ing] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. 551(13). Section 704 confines judicial review under the APA (absent a statute providing otherwise) to "final" agency action, 5 U.S.C. 704-that is, agency action that "mark[s] the consummation of the agency's decisionmaking process" and "by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 177-178 (1977) (internal quotation marks omitted).

Reviewable "agency action" under the APA thus consists of discrete, clearly identified, and definitive actions-such as the issuance of a "rule" or the grant of a "license"-that constitute the end product of the agency's deliberations and that carry legal consequences. Such reviewable agency action is readily distinguishable from an agency's ongoing administration of its programs and activities. This Court recognized as much in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). There, the Court held that an agency's "day-to-day operations" in managing public lands could not be challenged "wholesale" under Section 706(2), because they did not constitute "an identifiable 'agency action' -much less a 'final agency action'"-within the meaning of the APA's judicial review provisions. Id. at 890-891, 899.

Here, the Ninth Circuit acknowledged that the Forest Service's day-to-day management of the wilderness study areas, such as its "trail maintenance and improvement work," is not judicially reviewable "agency action" under Section 706(2). App., infra, 6a. The court reasoned that such ongoing programmatic activity "does not fit into any of the statutorily defined categories for agency action," and is not "final" action that "'mark[s] the consummation of the [Forest Service's] decisionmaking process.'" Id. at 6a-7a (quoting Bennett, 520 U.S. at 177). Yet, the court held that such activity-including both the Forest Service's overall management of the wilderness study areas and its particular maintenance and improvement work in two areas-is reviewable under Section 706(1) to compel compliance with the general statutory requirement to maintain the areas' wilderness character and potential for wilderness designation. Id. at 8a-9a; accord Center for Biological Diversity v. Veneman, No. 02-16201, 2003 WL 21517980 (9th Cir. July 7, 2003) (holding that an agency could be compelled under Section 706(1) to inventory rivers to assess their suitability for inclusion in the Wild and Scenic Rivers System while also holding that such an inventory would not constitute final agency action that could be reviewed under Section 706(2)).

The APA does not, however, distinguish between the "agency action" that is reviewable under Section 706(1) and the "agency action" that is reviewable under Section 706(2). Consequently, a court may "compel" under Section 706(1) only the sort of agency action that, if taken instead of "withheld" or "delayed," could be reviewed under Section 706(2). See Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) (en banc) (holding that Forest Service's management of public lands was not reviewable under either Section 706(1) or Section 706(2)), cert. denied, 532 U.S. 1051 (2001).

The Ninth Circuit's decisions in this case and Center for Biological Diversity, like the Tenth Circuit's decision in Southern Utah Wilderness Alliance, are of substantial practical importance. Such decisions impermissibly invite courts to engage in wide-ranging review of an agency's entire course of conduct, see App., infra, 10a-11a (directing trial on agency's compliance with general statutory standard in administering seven wilderness study areas), to order systemic changes in an agency's day-to-day operations, and to reorder the agency's priorities for the allocation of scarce resources. As this Court recognized in National Wildlife Federa-tion, however, plaintiffs "cannot seek wholesale improvement of [an agency's] program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made." 497 U.S. at 891

If the Court grants the petitions for certiorari in Southern Utah Wilderness Alliance, the Court's decision will very likely affect the proper disposition of this case. Accordingly, the Court should hold the petition in this case pending its disposition of the petitions in Southern Utah Wilderness Alliance.

CONCLUSION

The petition for a writ of certiorari should be held pending the Court's disposition of Norton v. Southern Utah Wilderness Alliance, No. 03-101, and Utah Shared Access Alliance v. Southern Utah Wilderness Alliance, No. 02-1703, and then disposed of accordingly.

Respectfully submitted.

THEODORE B. OLSON
Solicitor General
THOMAS L. SANSONETTI
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY BOSSERT CLARK
Deputy Assistant Attorney
General
BARBARA MCDOWELL
Assistant to the Solicitor
General
ANDREW MERGEN
ELLEN DURKEE
TAMARA ROUNTREE
Attorneys

NANCY C. BRYSON
General Counsel
Department of Agriculture

JULY 2003

* The court dismissed without prejudice MWA's challenge to the Forest Service's failure to conduct an analysis under the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., with respect to trail improvement projects. App., infra, 28a.

APPENDIX A

UNITED STATES COURT OF APPEALS
NINTH CIRCUIT

Nos. 01-35690, 01-35713

MONTANA WILDERNESS ASSOCIATION, INC.;
FRIENDS OF THE BITTERROOT, INC.;
AMERICAN WILDLANDS, INC., PLAINTIFFS-APPELLEES

v.

UNITED STATES FOREST SERVICE, AN AGENCY
OF THE U.S. DEPARTMENT OF AGRICULTURE;
DAN GLICKMAN, SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE; HAL SALWASSER, REGIONAL FORESTER FOR REGION ONE, U.S. FOREST SERVICE; JACK WARD THOMAS, CHIEF, U.S. FOREST SERVICE, DEFENDANTS, MIDDLEFORK PROPERTY OWNERS ASSOCIATION, DEFENDANT-INTERVENOR,

AND

BLUE RIBBON COALITION, INC.; MONTANA SNOWMOBILE ASSOCIATION; MONTANA 4X4 ASSOCIATION; HIGH COUNTY TRAIL RIDERS ASSOCIATION; MONTANA TRAIL VEHICLE RIDERS ASSOCIATION; RIMROCK 4X4, INC.; MONTANA HIGH COUNTRY TOURS; BITTERROOT ADVENTURES; SNEED'S CYCLE AND SLED, DEFENDANTS-INTERVENORS-APPELLANTS

MONTANA WILDERNESS ASSOCIATION, INC.; FRIENDS OF THE BITTERROOT, INC.;
AMERICAN WILDLANDS, INC., PLAINTIFFS-APPELLEES

v.

UNITED STATES FOREST SERVICE, AN AGENCY OF THE U.S. DEPARTMENT OF AGRICULTURE; DAN GLICKMAN, SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE; HAL SALWASSER, REGIONAL FORESTER FOR REGION ONE, U.S. FOREST SERVICE; JACK WARD THOMAS, CHIEF, U.S. FOREST
SERVICE, DEFENDANTS-APPELLANTS

AND

BLUE RIBBON COALITION, INC.; MONTANA SNOWMOBILE ASSOCIATION; MONTANA 4X4 ASSOCIATION; HIGH COUNTY TRAIL RIDERS ASSOCIATION; MONTANA TRAIL VEHICLE RIDERS ASSOCIATION; RIMROCK 4X4, INC.; MONTANA HIGH COUNTRY TOURS; BITTERROOT ADVENTURES; SNEED'S CYCLE AND SLED, MIDDLEFORK PROPERTY OWNERS ASSOCIATION, DEFENDANTS-INTERVENORS

Argued and Submitted Nov. 6, 2002
Filed Jan. 6, 2003

OPINION

Before: TROTT, T.G. NELSON and THOMAS, Circuit Judges.

TROTT, Circuit Judge:

The United States Forest Service ("Forest Service") and Intervenors, Blue Ribbon Coalition, Inc., et al., appeal the district court's order (1) determining that it had subject matter jurisdiction over this action under the Administrative Procedures Act ("APA"), and (2) granting the Montana Wilderness Association ("Wilderness Association") summary judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

In 1977, Congress passed the Montana Wilderness Study Act ("the Act") to "provide for the study of certain lands to determine their suitability for designation as wilderness." Pub.L. No. 95-150, 91 Stat. 1243 (1977). The Act mandates that the Secretary of Agriculture "shall, until Congress determines otherwise," administer specific Wilderness Study Areas ("Study Areas") "to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System" ("Wilderness System"). Id. (emphasis added). The Secretary of Agriculture administers the areas at issue in this case through the Forest Service. Congress intended that, within seven years after the Act was passed, the President would make a recommendation to Congress on whether the Study Areas should be included in the Wilderness System. Twenty-five years later, no final decision has been made to include the Study Areas at issue in this case in the Wilderness System (or to exclude them from the system). Consequently, the Forest Service has been managing the Study Areas under Congress' interim arrangement for more years than intended.

The Wilderness Association claims the Forest Service violated the Act by failing to maintain seven Study Areas' wilderness character and potential for wilderness designation when it "allow[ed], encourag[ed], and/or fail[ed] to act to prevent motorized vehicle use of [the Study Areas] beyond what existed in 1977." Specifically, the Wilderness Association's complaint alleges in Count I that the Forest Service's "actions and inactions" increased the type and amount of motorized activity in all Study Areas, resulting in diminished wilderness character and potential for inclusion in the Wilderness System as it existed in 1977. Count III alleges that the Forest Service's plastic pipe installation, new bridge construction, and reconstruction projects upgrading trails for four-wheel off-road vehicle use in the Hyalite Porcupine Buffalo Horn Study Area violate the Act. Count VI alleges that the Forest Service's action in the West Pioneers Study Area-dynamiting boulders on trails to allow use of four-wheelers, adding gravel to trails, and constructing a new trail for motorized use-has led to an increase in the type and amount of off-road vehicle use, and diminished the area's wilderness characteristics and suitability for inclusion in the Wilderness System.

On cross motions for summary judgment, the district court granted summary judgment for the Wilderness Association on all three counts.1 The district court determined it had jurisdiction under the APA and concluded that the Forest Service violated the Act by failing "to consider whether, how, and to what extent its management decisions have impacted the wilderness character of the areas as they existed in 1977," and by failing "to develop discernible criteria for assessing and maintaining the wilderness character of non-motorized use areas while conducting trail maintenance and improvement in areas of motorized use." The district court issued a declaratory judgment and an injunction requiring the Forest Service "to comply with the [Act] and to take reasonable steps to restore the wilderness character of each [Study Area] if its wilderness character has been diminished since 1977." The Forest Service and Intervenors timely appealed, arguing that the district court lacked subject matter jurisdiction under the APA and should not have granted summary judgment for the Wilderness Association.

STANDARD OF REVIEW

This court reviews de novo the existence of subject matter jurisdiction and a district court's grant of summary judgment. Delta Sav. Bank v. United States, 265 F.3d 1017, 1021, 1024 (9th Cir.2001). We view the evidence in the light most favorable to the nonmoving party to determine whether any genuine issues of material facts exist and whether the district court correctly applied the relevant substantive law. Balint v. Carson City, Nev., 180 F.3d 1047, 1050 (9th Cir.1999) (en banc).

DISCUSSION

I Section 706(2) Of The APA

Section 706(2) of the APA authorizes courts to "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "short of statutory right." 5 U.S.C.§§ 706(2)(A), (C). To establish subject matter jurisdiction under this section, the Wilderness Association must demonstrate that the Forest Service's maintenance activities constitute final agency action. Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 925 (9th Cir. 1999). The district court identified the Forest Service's trail maintenance and improvement work alleged in Counts III and VI as the final "agency action" subject to review.2

The Forest Service argues that this "routine maintenance work" is not final agency action. We agree. Two conditions must be met for agency action to be considered final under the APA. Id. at 925. First, "the action should mark the consummation of the agency's decision making process; and [second], the action should be one by which rights or obligations have been determined or from which legal consequences flow." Id. (citing Bennett v. Spear, 520 U.S. 154, 177, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997)).

Trail maintenance does not "mark the consummation of the [Forest Service's] decision making process." Bennett, 520 U.S. at 177, 117 S. Ct. 1154. The Forest Service's maintenance activities implement its travel management and forest plans adopted for the Study Areas. The House Report for the Act states, "[n]othing in the [the Act] will prohibit the use of off-road vehicles, unless the normal Forest Service planning process and travel planning process, which applies to all national forest lands, determines off-road vehicle use to be inappropriate in a given area." H.R.Rep. No. 95-620, at 159 (1977) (emphasis added). This legislative history suggests that Congress intended forest and travel management plans to be the consummation of the decision making process with regard to trails allowing off-road vehicle access. Thus, the maintenance of trails designated by those plans is merely an interim aspect of the planning process, not the consummation of it.

In addition, the Forest Service's maintenance of trails does not fit into any of the statutorily defined categories for agency action. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 899, 110 S. Ct. 3177, 111 L.Ed.2d 695 (1990) (stating the plaintiff "cannot demand a general judicial review of the BLM's day-to-day operations"). "Agency action" is defined to include "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13). Jurisdiction under section 706(2) is inappropriate here because the Wilderness Association failed to identify any final "agency action" as defined by the APA. Accordingly, the district court did not have subject matter jurisdiction under the APA to grant summary judgment on Counts III and VI, and we reverse that portion of the district court's order.3

II Section 706(1) Of The APA

Section 706(1) of the APA authorizes judicial review to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). Judicial review is appropriate if the Wilderness Association makes a showing of "agency recalcitrance . . . in the face of clear statutory duty or . . . of such a magnitude that it amounts to an abdication of statutory responsibility." ONRC Action v. Bureau of Land Mgmt. ("BLM"), 150 F.3d 1132, 1137 (9th Cir.1998) (quoting Public Citizen Health Research Group v. Comm'r, Food & Drug Admin., 740 F.2d 21, 32 (D.C.Cir.1984)).

The Forest Service argues that its duties under the act are discretionary and no clear statutory duty exists to authorize review under section 706(1). The Forest Service relies on this court's decision in ONRC Action for support. 150 F.3d 1132. The plaintiffs in ONRC Action alleged that the BLM's refusal to impose a moratorium on certain actions pending completion of an Environmental Impact Statement "would violate the mandates of [the National Environmental Policy Act ("NEPA") ], requiring preservation of alternatives during the EIS process." 150 F.3d at 1134-35. They alleged also a violation of the Federal Land Management Policy Act ("FLMPA"), requiring revision of land use plans when "appropriate." Id. at 1135, 1139 (quoting 43 U.S.C. § 1701). On the FLMPA claim, we explained that the FLMPA and its implementing regulations set forth policy statements and general guidance, and allow for revision of land use plans without a schedule mandating when plans must be revised, but that neither the FLMPA nor its regulations set forth a clear statutory mandate. Id. at 1139-40. We characterized the plaintiffs' challenge as "one seeking to compel compliance with NEPA and FLMPA" and determined that the action was not subject to review under section 706(1) because the BLM did not have a clear duty to impose the requested moratorium under either NEPA or the FLMPA. Id. at 1137-38, 1140.

Here, however, the Act does more than provide a mere policy statement or general guidance; it establishes a management directive requiring the Forest Service to administer the Study Areas to "maintain" wilderness character and potential for inclusion in the Wilderness System. Unlike the requested moratorium in ONRC Action, the Forest Service's duty to maintain wilderness character and potential is a nondiscretionary, mandatory duty that it may be compelled to carry out under section 706(1).

The Forest Service argues that even if the Act provides a specific, mandatory duty, the Wilderness Association has not alleged facts demonstrating the Forest Service's complete failure to act, and that review is permitted under section 706(1) "only where there has been a genuine failure to act." Ecology Ctr., 192 F.3d at 926. In Ecology Center, the plaintiffs claimed that the Forest Service had not complied with monitoring duties imposed by NEPA and its implementing regulations. Id. at 923. This court declined to find a "failure to act" because the record demonstrated "that the Forest Service performed extensive monitoring and provided detailed reports recounting its observations," even though it "failed to conduct its duty in strict conformance with" regulations. Id. at 926. In Ecology Center, the duty was simply to monitor and the record demonstrated that the Forest Service had performed several actions to comply with this duty. Here, the duty is to maintain a specified goal, i.e., wilderness character and potential for inclusion in the Wilderness System, and the record does not demonstrate that the Forest Service performed its obligations in an extensive and detailed manner as it did in Ecology Center. While the Forest Service recited the requirements of the Act in some of its decisions, those decisions did not assess whether wilderness character and potential had actually been maintained in the Study Areas. The simple fact that the Forest Service has taken some action to address the Act is not sufficient to remove this case from section 706(1) review. We conclude therefore that the district court did have subject matter jurisdiction to hear this claim.

However, the district court articulated the "clear statutory duty" in this case as the Forest Service's duty to "consider the impact of its decisions on the nature, quality, and scope of the [Study Areas'] wilderness character as it existed in 1977." (Emphasis added). We respectfully disagree. The Forest Service's statutory duty under the Act is more specific. The Forest Service's failure to consider the impact of its decisions on wilderness character and potential may be relevant to its duty to maintain the wilderness character and potential, but a simple failure to consider without more is not enough to violate the duty if the area has been "administered so as to maintain [its] presently existing wilderness character and potential for inclusion" in the Wilderness System.

The Forest Service presented sufficient evidence to support its claim that it has administered the Study Areas so as to maintain wilderness character and potential, and the Wilderness Association has submitted evidence indicating the opposite. Thus, the record reveals a genuine issue of material fact as to whether the Forest Service has discharged its duty to administer the Study Areas so as to maintain their wilderness character and potential for inclusion in the Wilderness System. Accordingly, we reverse the district court's grant of summary judgment, vacate the injunction, and remand for trial on this issue.

CONCLUSION

We conclude that the district court has subject matter jurisdiction over the claims in Count I under section 706(1) of the APA. However, because genuine issues of material fact exist regarding whether the Forest Service met its duty to administer the Study Areas to maintain wilderness character and potential for inclusion in the Wilderness System, we reverse the district court's grant of summary judgment on Count I and remand for trial.

In addition, we reverse the district court's grant of summary judgment on the agency action alleged in Counts III and VI because the district court lacked subject matter jurisdiction under section 706(2) of

the APA. To the extent the Wilderness Association's claims in Counts III and VI were based on the Forest Service's alleged inaction, the district court has jurisdiction under section 706(1) of the APA, but genuine issues of material fact exist precluding summary judgment; accordingly, we also remand for trial on the agency inaction issue in Counts III and VI. Because we reverse the district court's grant of summary judgment on all counts, we vacate the injunction issued by the district court.

AFFIRMED in part, REVERSED in part, and REMANDED for trial.

The parties shall bear their own costs of this appeal.

1 The remaining counts were either dismissed or subsumed by Count I.

2 The district court also pointed to the Forest Service's failure to "develop discernable criteria" for wilderness characteristics as an agency action. The Act, however, does not require the Forest Service to develop criteria, and this type of claim more appropriately fits into the "failure to act" category of Section 706(1).

3 To the extent Counts III and VI allege claims based on agency inaction under section 706(1), the district court has jurisdiction and the discussion at infra Part II applies.

APPENDIX B

UNITED STATES DISTRICT COURT
DISTRICT OF MONTANA
MISSOULA DIVISION

No. CV 96-152-M-DWM

MONTANA WILDERNESS ASSOCIATION INC.,
FRIENDS OF THE BITTERROOT, INC., AND
AMERICAN WILDLANDS, INC., PLAINTIFFS

v.

UNITED STATES FOREST SERVICE, AN
AGENCY OF THE U.S. DEPARTMENT OF AGRICULTURE,
HAL SALWASSER, REGIONAL FORESTER FOR
REGION ONE, U.S. FOREST SERVICE, JACK WARD
THOMAS, CHIEF, U.S. FOREST SERVICE, DEFENDANTS

AND

BLUE RIBBON COALITION, INC.; MONTANA
SNOWMOBILE ASSOCIATION; MONTANA 4X4
ASSOCIATION; HIGH COUNTRY TRAIL VEHICLE
RIDERS ASSOCIATION; RIMROCK 4X4,
INC.; MONTANA HIGH COUNTRY TOURS;
BITTERROOT ADVENTURES; AND SNEED'S CYCLE
AND SLED, DEFENDANT-INTERVENORS,

AND

MIDDLEFORK PROPERTY OWNERS ASSOCIATION,
DEFENDANT-INTERVENOR

__________

Filed: May 21, 2001

__________

ORDER

MOLLOY, Chief Judge.

I. Introduction

The question in this case concerns the Forest Service's duties under the Montana Wilderness Study Act of 1977. The question arises because the Congress acted with the express intention of further legislating, an intention that has not reached fruition for a myriad of reasons.

The 1977 Act created several Wilderness Study Areas in Montana involving nearly a million acres of land. Within these areas of wilderness study, the Forest Service has implemented diverse management plans and techniques for land use. In nearly a quarter of a century of management, use, and access to the lands in question, there have been changes and increased use. Plaintiffs contend that the Forest Service must not allow increased use of snowmobiles and all-terrain vehicles in Montana's Wilderness Study Areas if such increased use diminishes the wilderness quality of those areas as they existed in 1977. The nature of the Forest Service's duty is complicated by the fact that Congress intended to reach a final decision on wilderness designation of these areas by 1984. The problem is that Congress did act, and did so unequivocally, but Congress' intent to finalize its intention by either designating the lands as Wilderness or releasing them for other use has never happened.

Thus, for the Forest Service, a relatively short-term management task has burgeoned into a seemingly perpetual dilemma. Non-motorized users complain of "creeping motorization"; motorized users fear "creeping designation."

The Complaint

Plaintiffs filed an eleven-count Complaint on October 9, 1996, alleging, in effect, that the Forest Service "unlawfully or unreasonably delayed action" or abused its discretion, 5 U.S.C. § 706(1), (2)(A), by failing to maintain the wilderness character of the nine Wilderness Study Areas created in 1977 by the passage of S. 393, the Montana Wilderness Study Act (Pub.L. No. 95-150, 91 Stat. 1243 (Nov. 1, 1977)). After discussion among the parties and with the Court, Counts IV, V, VII, and VIII were considered subsumed in Count I and Plaintiff agreed to their dismissal on that basis. Order of February 13, 1998, at 11, 12-13. Count II, concerning the Sapphire Wilderness Study Area, part of Count IX, and Count X were dismissed for failure to exhaust administrative remedies. Id. at 5-10, 13. Count XI became superfluous when I determined that Counts I, III, VI, and IX were reviewable under the Administrative Procedures Act, 5 U.S.C. § 706(1), (2)(A). Id. at 14. See also 5 U.S.C. § 706(2)(C). Thus, the following counts remain at issue:

Count I, alleging that the actions and inactions of the Forest Service in each of the Wilderness Study Areas "have resulted in substantially increased motorized use of WSAs, which has resulted in increased environmental damage, disruption of wildlife and despoiling of aesthetic values," all in derogation of the Wilderness Study Areas' potential for wilderness designation and Congress' management mandate. Complt. at 7, ¶ 12.

Count III, alleging that the Forest Service's improvement of erosion bars and placement of new bridges and plastic culvert pipes has so improved trails in the Hyalite-Porcupine-Buffalo Horn Wilderness Study Area in the Gallatin National Forest as to encourage motorized use and diminish the study area's wilderness characteristics and suitability for wilderness designation.

Count VI, alleging that the Forest Service dynamited boulders, placed crushed gravel, and constructed new trails in the West Pioneers Wilderness Study Area in the Beaverhead National Forest, thus encouraging increased motorized use and compromising the wilderness quality of the area.

Count IX, alleging that the Forest Service violated its duty to assess the cumulative impacts of increased motorized use of Wilderness Study Areas when it categorically excluded trail improvement projects from review under the National Environmental Policy Act.

All parties moved for summary judgment, and oral argument was heard. For the reasons set forth below, summary judgment is granted in favor of Plaintiffs on Counts I, III, and VI. Count IX will be dismissed without prejudice.

II. The Montana Wilderness Study Act

The roots of the Montana Wilderness Study Act reach back to 1967, when the United States Forest Service undertook an inventory of certain roadless and undeveloped areas in national forests. S.Rep. No. 95-163 (1977), at 2. The "Roadless Area Review and Evaluation," known as RARE, was completed in 1972. Nine seemingly wild areas in Montana were rejected for further wilderness study because they were arbitrarily divided into smaller units and were then found to be too small to sustain an appropriate level of "solitude," or because they contained some commercial timber, or because the Forest Service sought more "purity" than the areas could provide.4 H.R.Rep. No. 95-620 (1977), at 2.

In 1976, the Senate Committee on Energy and Natural Resources brought to the floor S. 393, a bill authored by Senator Lee Metcalf. S. 393 would have identified these nine areas as "wilderness study areas" to be considered for designation as Wilderness Areas under the Wilderness Act of 1964. The bill passed the Senate by a voice vote on August 23, 1976,5 but died when the 94th Congress adjourned.

In the 95th Congress, Senator Metcalf reintroduced the bill, explaining that:

[d]uring the study period, and until Congress determines otherwise, these areas are to be managed by the Secretary so as not to diminish their presently existing wilderness character and potential. This language regarding wilderness character and potential was added by the committee last Congress (and retained in this year's version) to assure continued enjoyment of the areas by those recreationists whose pursuits will not, in the judgment of the Secretary, preclude potential wilderness designation for the areas.

S. Rep. No. 95-163, at 2 (emphasis added).

The House of Representatives was also involved in trying to resolve the question of how the land should be designated and what its use should be. Recognizing one of two concerns aired in committee hearings, the House Report considered and accepted continuing use of off-road vehicles in the nine areas that now are the subject of this lawsuit:

The use of off-road vehicles, while generally prohibited in designated wilderness areas, is entirely appropriate in wilderness study areas . . . . Nothing in S. 393 will prohibit the use of off-road vehicles, unless the normal Forest Service planning process . . . determines off-road vehicle use to be inappropriate in a given area. . . . [I]t is the intention of the committee that the areas in S. 393 remain open to off-road vehicle use unless and until they are formally designated as wilderness.

H.R.Rep. No. 95-620 (1977), at 4 (emphasis added).6

The clarity of Congress' endorsement of continuing off-road vehicle use is qualified by the fact that Congress also intended to reach a final decision about such use within a short time, when it was to decide whether to designate any of the nine areas as Wilderness Areas. The House Committee on Interior and Insular Affairs, wary of "tying up this large acreage in wilderness study status for longer than is necessary," H.R.Rep. No. 95-620 (1977), at 1, recommended that the Forest Service "give a high priority to the completion of all nine studies within a period of 24 to 30 months (or less), if at all possible," and that the President "make his recommendations to Congress . . . [in] no more than 6 months," id. at 2. The "legislative force" of the Act was directed at a more modest pace. It allowed 5 years for study and 2 years for executive review and recommendations. Id. Thus, Congress anticipated that each area designated as a wilderness study area would either be designated Wilderness or would be removed from the protective cover of the study by about 1984.

Today, 24 years after the enactment of S. 393, the nine areas it set aside remain "Wilderness Study Areas."7 The Forest Service remains charged with managing the areas "so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System," Pub.L. No. 95-150, § 3(a), 91 Stat. 1243 (1977). The controversy at hand questions what it means to "maintain" these areas-in-limbo. Did Congress intend to keep the land and its use as it was in 1977? Or did Congress intend to preserve the potential of the land without major concern for its use while it was studied?

III. Analysis

A. Count I

The Montana Wilderness Study Act provides:

Except as otherwise provided by this section . . . the wilderness study areas designated by this Act shall, until Congress determines otherwise, be administered by the Secretary of Agriculture so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System.

Pub. L. No. 95-150, § 3(a), 91 Stat. 1243 (1977) (emphasis added).

Congress has not used the identical phrases contained in this statute in any other bill. The parties agree that motorized use is not consistent with wilderness character, see 16 U.S.C. §§ 1131(c), 1133(c), but further agree that Congress intended to allow some motorized use to continue.

Relying on language in the Federal Land Policy and Management Act, Plaintiffs argue that the Act established a "non-impairment" standard and directed the Forest Service to maintain the status quo of 1977, restricting the types of vehicles and levels of use that could be accommodated. The Forest Service and the Intervenors argue that Congress only directed maintenance of the areas' potential for designation as Wilderness: "If Congress acts to designate these areas as Wilderness, they will have the same potential for solitude and primitive recreation as they did in 1977." Def. Br. at 8 (emphasis added).

1. Defendants' Interpretation and Chevron Deference

Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and Haynes v. United States, 891 F.2d 235, 238 (9th Cir.1989), cited in Forest Service Br. at 1-2, an implementing agency's interpretation of a statutory scheme is entitled to deference if Congress has not spoken directly to the question raised and if the agency's interpretation of the statutory language is reasonable. Chevron deference is not due if the agency's interpretation is contrary to the statute. See Echazabal v. Chevron U.S.A., Inc., 226 F.3d 1063, 1069 (9th Cir. 2000).

Congress has spoken directly to the issue presented here, i.e., the management objectives of the Forest Service. Congress required the agency to manage the Wilderness Study Areas "so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System."

The language of the statute commands the United States Forest Service to do two things. It requires the Forest Service to "maintain [the areas'] presently existing wilderness character," and it requires the Forest Service to "[maintain their] potential for inclusion in the National Wilderness Preservation System." If the areas' wilderness character is maintained, then undoubtedly their potential for designation is maintained. But maintaining the land's potential for designation as Wilderness does not necessarily ensure the maintenance of their 1977 "presently existing" wilderness character.

The Forest Service argues that it need not do the first if it can pledge the second. Under that reasoning, temporary trails might be laid down in every segment of every Wilderness Study Area, regardless of whether the trails were there in 1977, so long as the traces of those trails could be removed within a reasonable time after Congress selected the area for designation as Wilderness. The Forest Service and the Intervenors do not argue that motorized use has not increased, nor do they argue that this increased use has had no effect on the Wilderness Study Areas. Rather, they argue that whatever motorized use is now allowed does not compromise the areas' potential for designation as Wilderness Areas.

But that is not a reasonable interpretation of what Congress demanded. To accept the Forest Service's argument, one must ignore the first phrase of Congress' imperative, so that the statute says that the Wilderness Study Areas must be administered "so as to maintain their [. . .] potential for inclusion in the National Wilderness Preservation System." Under the Defendants' and Intervenors' reading, the phrase "presently existing wilderness character" is surplusage, because it could mean only that the areas have potential to be included in the National Wilderness Preservation System. To ignore part of what Congress said in a statute is not reasonable, even under a deferential reading.8

Construing the first statutory phrase not as surplusage but as meaningful, no interpretation can make "presently existing wilderness character" mean anything other than the wilderness character existing at the time Congress issued its mandate. In 1977, it was impossible to say "presently existing" and mean "existing in 1996 or 2001." In 1977, Congress required preservation of the status quo as regards the study areas' wilderness character.

2. Plaintiffs' Interpretation

On the other hand, Plaintiffs' reading of the statute is not entirely correct either. They employ the same "gap" theory of statutory interpretation used by the Defendants and Intervenors: where the language does not support your interpretation, leave gaps. The Wilderness Association's interpretation of the statutory language renders the second phrase surplusage. In Plaintiffs' view, the statute would say that the Wilderness Study Areas must be administered "so as to maintain their presently existing wilderness character [pending a decision as to their] inclusion in the National Wilderness Preservation System." As stated above, maintaining each Wilderness Study Area exactly as it existed in 1977 would necessarily mean that the areas' "potential for inclusion in the National Wilderness Preservation System" was also maintained. Therefore, there would be no need for Congress to include the latter phrase.

3. Legislative History and Context

The meaning of the apparently incongruous statutory terms can be fleshed out by recourse to legislative history, as all parties have suggested. That history indicates Congress' awareness when enacting the questioned statute that the Wilderness Study Areas included some areas where motorized use was allowed and some areas where it was not allowed. The wilderness character of the study areas may not have been perfect or complete; otherwise, they might have been designated Wilderness Areas instead of study areas. But the wilderness character of the land areas was not absent either. To the extent the wilderness character was there, Congress wanted to maintain it.9 To the extent the wilderness character was lacking, Congress did not want to impose it.10 One Wilderness Study Area could contain areas that had wilderness character to be kept intact while other parts were beyond the Wilderness pale.

Even so, Congress did not require a "freeze" of all activity. It contemplated that use levels might fluctuate and that types of motorized vehicles might change. Congress intended that existing and new or different uses should be accommodated, so long as they did not undermine an area's potential for Wilderness designation and so long as they did not undermine the area's presently existing wilderness character.

4. The Meaning of the Montana Wilderness Study Act of 1977

In short, the statute requires the Forest Service to strike-and maintain-a balance between wilderness character and motorized use.11 Because Congress did not require a "freeze," it did not require that only those segments of the Wilderness Study Areas already open to motorized activity should remain so, or that those segments already closed should remain so. Indeed, that plan could result in "freezing out" motorized use altogether or, on the other hand, in precluding Wilderness designation, due to degradation of the wilderness character (for example, by excessive use impacts) over time. Instead, Congress required that the Forest Service ensure continuing opportunities for enjoyment of the study areas by use of motorized vehicles, as well as continuing opportunities for enjoyment of the study areas' character qua wilderness.

Consequently, in making decisions about trail maintenance, improvement, construction, motorized use, and closings, the Forest Service must consider the impact of its decisions on the nature, quality, and scope of the particular study area's wilderness character as it existed in 1977. Conversely, in making decisions about trail closings, the Forest Service must consider the impact of its decisions on the nature, quality, and scope of motorized use as it existed in 1977, provided that it also considers what is necessary to avoid precluding Wilderness designation by changing the character of the land through new, different, or expanded diverse uses.

5. Merits of Count I

A search of the 47-volume Administrative Record in this case shows that the Forest Service did not base its management of these areas on a coherent description of either the "presently existing wilderness character" in 1977 or the opportunities for motorized use in 1977. On occasion, the agency considered the impact of management decisions in motorized segments of the study areas on the wilderness character of non-motorized segments as of 1977. See, e.g., A.R. Vol. 5, Bk. 1, Sec. 12, Doc. No. 32, Decision Notice and Finding of No Significant Impact, Middle Fork Judith Road and Trailhead Improvement, at DN-4 ("Development of new routes could occur in the Area Closure G area which could detract from its existing wilderness character . . . . The 1977 Montana Wilderness Study Act as well as the legislative history point out that wilderness study areas need not be managed as wilderness, except as to maintain their presently existing wilderness character.").

However, sporadic consideration of the Congressional mandate is not sufficient. Nor is consideration possible without a meaningful standard. See, e.g., Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1379 (9th Cir.1998) ("To 'consider' cumulative effects, some quantified or detailed information is required.").

Furthermore, the Forest Service has not proffered any reason for its failure to consider the impact of its management decisions on the wilderness character or motorized uses of the areas in 1977. The management rationale is reflected in the notion that anticipated designation is the greater part of management.

Congress does not ask agencies to do the impractical. Inland Empire Public Lands Council v. United States Forest Service, 88 F.3d 754, 764 (9th Cir. 1996). But an assessment of the Montana study areas' wilderness character and the associated motorized uses in 1977 is not, and was not, impractical. The Forest Service developed the Wilderness Attribute Rating System to identify and evaluate wilderness character. One of these attributes-solitude-appears most likely to be impacted by management decisions in motorized use areas, not necessarily because well-maintained trails might lead to more traffic, but because the aural traces of motorized use are difficult, if not impossible, to manage and control. The Rating System was introduced in 1967, with the Roadless Area Review and Evaluation. While it might in some instances be too generalized to be useful, see, e.g., California v. Block, 690 F.2d 753, 763-64 (9th Cir.1982), it does provide a benchmark for prospective management and specific criteria to guide and exemplify the agency's exercise of its discretion. The Forest Service has also completed studies regarding each Wilderness Study Area's suitability for Wilderness designation.

Because the Forest Service has interpreted the Act to require only that the areas' potential for wilderness designation be maintained, it has failed to consider whether, how, and to what extent its management decisions have impacted the wilderness character of the areas as they existed in 1977, as the statute requires. I conclude that the Forest Service has "unlawfully withheld or unreasonably delayed" its maintenance of the Montana Wilderness Study Areas' 1977 wilderness character. 5 U.S.C. § 706(1); Complt. at 7, ¶ 12. Plaintiffs are entitled to summary judgment on Count I.

B. Counts III and VI

Plaintiffs are also entitled to summary judgment on Counts III and VI. The Forest Service has not considered whether, how, and to what extent its management decisions in the Hyalite-Porcupine-Buffalo Horn Wilderness Study Area in the Gallatin National Forest and in the West Pioneer Wilderness Study Area in the Beaverhead National Forest have impacted the nature, quality, and scope of the wilderness character of those areas as they existed in 1977. Thus, the agency has unlawfully withheld or unreasonably delayed its maintenance of the areas' 1977 wilderness character.

To the extent Counts III and VI pertain to final agency actions already taken, the Forest Service abused its discretion and acted arbitrarily and capriciously, 5 U.S.C. § 706(2)(A), and acted "short of statutory right," id. § 706(2)(C), in failing to develop discernible criteria for assessing and maintaining the wilderness character of non-motorized use areas while conducting trail maintenance and improvement in areas of motorized use.

C. Count IX

Under the National Environmental Policy Act, an environmental impact statement must be prepared for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C.

§ 4332(2)(C). Because the Forest Service made its decisions regarding categorical exclusions under the wrong statutory standard, the Court has no way of determining whether its application of categorical exclusions violated NEPA or not. To allow the agency to reconsider under the appropriate standard, Count IX is dismissed without prejudice.

D. Remedy

In this case, Plaintiffs requested declaratory and injunctive relief. See Complt. at 14-15, ¶¶ 1-6. Ordinarily, the remedy in a lawsuit involving an administrative agency's actions is remand to the agency. This approach acknowledges the agency's unique expertise and its responsibility to execute the law by allowing the agency to reformulate its objectives and exercise its discretion in planning to fulfill them.

The appropriate remedy is to allow the Forest Service to consider its management of the Montana Wilderness Study Areas in light of the correct statutory standard. Plaintiffs are entitled to declaratory judgment and to injunctions requiring the Forest Service to comply with the statute and to take reasonable steps to restore the wilderness character of each Montana Wilderness Study Area if its wilderness character has been diminished since 1977.

IV. Conclusion

In 1977, Congress intended to decide12 the fate of 973,000 acres of Montana land by 1984, at the latest. To make an informed decision, it set the land aside for study. To keep its options open and to continue to allow the areas to provide the kinds of experiences that people drew from them in 1977, Congress ordered the Forest Service to "maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System."

Had Congress acted when it intended to, the Forest Service would not face its decades-long management dilemma. Nonetheless, the statutory imperative is not diminished by time. Congress may choose not to act on these areas for some time to come. That question is a matter solely for Congress. Whether Congress acts tomorrow or years from now or never, the 1977 Montana Wilderness Act requires that the nature, quality, and scope of experiences supported by the Wilderness Study Areas shall be maintained, awaiting Congress' decision.

Accordingly, IT IS HEREBY ORDERED that Plaintiffs' motion for summary judgment (dkt # 68) is GRANTED as to Counts I, III, and VI of the Complaint. Count IX of the Complaint is DISMISSED without prejudice.

IT IS FURTHER ORDERED that the Clerk of Court shall enter Judgment by separate document. The Judgment shall state that the Forest Service violated Pub.L. No. 95-150, § 3(a), 91 Stat. 1243 (1977), by failing to administer the Montana Wilderness Study Areas so as to maintain each area's wilderness character as it existed in 1977.

IT IS FURTHER ORDERED that the United States Forest Service is ENJOINED from taking any action in any Montana Wilderness Study Area that diminishes the wilderness character of the area as it existed in 1977 or that diminishes the area's potential for inclusion in the National Wilderness Preservation System.

IT IS FURTHER ORDERED that the United States Forest Service is ENJOINED to take reasonable steps to restore the wilderness character of any Montana Wilderness Study Area as it existed in 1977 if the area's wilderness character or its potential for inclusion in the National Wilderness Preservation System has been diminished since 1977.

IT IS FURTHER ORDERED that Plaintiffs are entitled to their costs and attorneys' fees under the Equal Access to Justice Act. Plaintiffs shall serve and file an application on or before June 22, 2001. Defendants and Intervenors may respond to the application on or before July 13, 2001.

4 Cf. Parker v. United States, 309 F. Supp. 593 (D.Colo.1970) (enjoining proposed timber sale in area bordering primitive area on grounds that border area contained most characteristics of primitive area, notwithstanding presence of "substantially unnoticeable" access road).

5 S. Rep. No. 95-163, at 2, says the bill passed on August 23, 1977. However, the Senate Report is dated May 14, 1977. Presumably the date of the previous bill's passage is inaccurate.

6 The House Report is frequently quoted in Forest Service documents in the Administrative Record. Although references may exist, the Court did not note any reference to Senator Metcalf's Report, quoted above, which stated the areas should be managed "so as not to diminish their presently existing wilderness character and potential" (emphasis added).

7 The Senate Report's finding that "[l]ittle, if any, additional paperwork would result from the enactment of S. 393," S.Rep. No. 95-163 (1977), at 17, was perhaps prophetic.

8 Moreover, Congress did not require that the Wilderness Study Areas be managed in accordance with standards existing prior to the Act, although the Wilderness Act itself did so. Such standards would have come from the Multiple Use Act, 16 U.S.C. § 528ff. Compare 16 U.S.C. § 1132(b) (requiring Forest Service to manage areas designated "primitive" as of September 3, 1964, to be managed "under the rules and regulations affecting such areas on September 3, 1964 until Congress has determined otherwise"). Nor did the advent of RARE II, the Forest Service's second round of inventories of roadless areas and evaluations for Wilderness designation, vitiate Congress' intent to set aside these Montana areas under its own peculiar standard. Thus, for the Forest Service to manage the areas under criteria more appropriate to the Multiple Use Act or RARE II is to ignore a Congressional mandate.

9 Senator Metcalf stated the areas were to be managed "so as not to diminish their presently existing wilderness character and potential." S. Rep. No. 95-163, at 2 (emphasis added).

10 "Nothing in S. 393 will prohibit the use of off-road vehicles." H. R. Rep. No. 95-620 (1977), at 4.

11 In 1996, District Ranger Larry Timchak of the Judith Ranger District noted "While motorized users typically have a high tolerance for non-motorized recreationists, the reverse is typically not the case." A.R. Vol. 5, Bk. 1, Sec. 12, Doc. No. 32, Decision Notice and Finding of No Significant Impact, Middle Fork Judith Road and Trailhead Improvement, at DN-4. No doubt Ranger Timchak's observation was as true in 1977 as it was in 1996 and is today.

12 See Ambrose Bierce, The Devil's Dictionary 29 (Dover ed.1952) (1881-1906) (defining "decide" as "[t]o succumb to the preponderance of one set of influences over another set.").

APPENDIX C

UNITED STATES COURT OF APPEALS
NINTH CIRCUIT

Nos. 01-35713
D.C. No. CV-96-00152-DWM

MONTANA WILDERNESS ASSOCIATION, INC.;
FRIENDS OF THE BITTERROOT, INC.;
AMERICAN WILDLANDS, INC., PLAINTIFFS-APPELLEES

v.

UNITED STATES FOREST SERVICE, AN AGENCY
OF THE U.S. DEPARTMENT OF AGRICULTURE;
DAN GLICKMAN, SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE; HAL SALWASSER, REGIONAL FORESTER FOR REGION ONE, U.S. FOREST SERVICE; JACK WARD THOMAS, CHIEF, U.S. FOREST SERVICE, DEFENDANT-APPELLANTS,

AND

BLUE RIBBON COALITION, INC.; MONTANA SNOWMOBILE ASSOCIATION; MONTANA 4X4 ASSOCIATION; HIGH COUNTY TRAIL RIDERS ASSOCIATION; MONTANA TRAIL VEHICLE RIDERS ASSOCIATION; RIMROCK 4X4, INC.; MONTANA HIGH COUNTRY TOURS; BITTERROOT ADVENTURES; SNEED'S CYCLE AND SLED; MIDDLEFORK PROPERTY OWNERS ASSOCIATION,
DEFENDANTS-INTERVENORS

Filed: April 23, 2003

ORDER

Before: TROTT, T.G. NELSON and THOMAS, Circuit Judges.

The panel as constituted above has voted to deny the petitition for rehearing and to deny the petition for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on it. Fed. R. App. P. 35(b).

The petition for rehearing and the petition for rehearing en banc are DENIED.

The mandate shall issue forthwith.