State of Utah v. Babbitt, 97-4015

Page 1193

137 F.3d 1193

46 ERC 1633, 28 Envtl. L. Rep. 20,561

STATE OF UTAH, Utah School and Institutional Trust Lands Administration and Utah Association of Counties Plaintiffs-Appellees, v. Bruce BABBITT, in his official capacity as Secretary of the interior; United states Department of the Interior; Sylvia V. Baca, in her official capacity as Acting Director of the Bureau of Land Management; United States Bureau of Land Management, Defendants-Appellants Southern Utah Wilderness Alliance; Sierra Club; Natural Resources Defense Council; Wilderness Society Amici-Curiae.

No. 97-4015.

United States Court of Appeals Tenth Circuit.

March 3, 1998.

Lisa E. Jones, Department of Justice, Washington, DC (Gary B. Randall and John A. Bryson, Department of Justice; Paul Smyth, Wendy Dorman and David Grayson, U.S. Department of the Interior, Office of the Solicitor; Lois J. Schiffer, Assistant Attorney General; Scott M. Matheson, Jr., United States Attorney, and Stephen J. Sorenson, Assistant United States Attorney, Salt Lake City, UT, with her on the briefs), for Defendants-Appellants.

Constance E. Brooks, C.E. Brooks & Associates, Denver, CO, (Michael B. Marinovich, C.E. Brooks & Associates, Denver, CO; Jan Graham, Attorney General for the State of Utah, and Stephen G. Boyden, Assistant Attorney General, State of Utah, Salt Lake City, UT; Ronald W. Thompson and Stephen H. Urquhart, Thompson & Associates, St. George, UT; John W. Andrews, Special Assistant Attorney General for the Utah School and Institutional Trust Lands Administration, Salt Lake City, UT, with her on the briefs), for Plaintiffs-Appellees.

Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, UT, (Robert B. Wiygul, Sierra Club Legal Defense Fund, Denver, CO, with her on the brief), filed an amicus curiae brief for Sierra Club Legal Defense Fund, Natural Resources Defense Council, and Southern Utah Wilderness Alliance.

Before MURPHY, LOGAN, Circuit Judges, and MILES-LaGRANGE ^*, District Judge.

MURPHY, Circuit Judge.

This case arises from Department of the Interior Secretary Bruce Babbitt's decision to inventory certain public lands in Utah for wilderness characteristics. Defendants appeal from the issuance of a preliminary injunction by the district court on November 15, 1996, enjoining Defendants from proceeding further with the inventory. We exercise jurisdiction under 28 U.S.C. § 1292(a)(1). Because we conclude that Plaintiffs lack standing to challenge the inventory, we vacate the preliminary injunction and remand with instructions to dismiss the seven causes of action directly related to the inventory and to further consider Plaintiffs' sixth cause of action, the only cause of action not directly related to the inventory.

I. BACKGROUND

A. Summary of Utah Wilderness Debate

A brief review of the history of the wilderness debate in Utah is necessary to put the facts of this case into context. In 1976, Congress enacted the Federal Land Policy and Management Act ("FLPMA") to, among other things, "[e]stablish a mission for the public lands administered by the Secretary of the Interior through the Bureau of Land Management" ("BLM"). H.R.Rep. No. 94-1163, at 431 (1976), reprinted in 1976 U.S.C.C.A.N. 6175, 6176. These public lands comprise approximately one-fifth of the nation's land and are primarily located in eleven western states and Alaska. See id.

FLPMA § 201 requires the Secretary of the Department of Interior ("Secretary") to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values." 43 U.S.C. § 1711(a). FLPMA § 603 ordered the Secretary to review within fifteen years certain "roadless areas of five thousand acres or more" and report to the President recommendations concerning the "suitability or nonsuitability" of each area for preservation as wilderness. ¹ 43 U.S.C. § 1782(a). Within two years after receiving the Secretary's recommendations, the President was to advise Congress of his recommendations. See id. § 1782(b). An Act of Congress is necessary to designate public lands as wilderness. See id.

Soon after FLPMA was enacted, BLM began its nationwide wilderness review program in accordance with the Wilderness Inventory Handbook ("WIH"), which was adopted to standardize the FLPMA § 603 process. See BLM, U.S. Dep't of the Interior, Wilderness Inventory Handbook 3 (1978) [hereinafter WIH]. The review proceeded in three stages: (1) the "inventory" phase, consisting of (a) an "initial inventory" to identify "wilderness inventory units," which were defined as roadless areas of 5000 acres or more that may have wilderness characteristics, and (b) an "intensive inventory" of these units to determine whether the units possessed wilderness characteristics and, if so, designation of the units as "wilderness study areas" ("WSAs"); (2) the "study" phase, during which WSAs were studied to determine whether the lands were suitable for designation as wilderness; and (3) the "reporting" phase, consisting of the Secretary's recommendations to the President and the President's recommendations to Congress. WIH, supra, at 3, 9-11; see also Rocky Mountain Oil & Gas Ass'n v. Watt, 696 F.2d 734, 740 (10th Cir.1982) (discussing § 603 wilderness review process). FLPMA § 603 directed the Secretary to "manage [the lands subject to the wilderness review process] ... so as not to impair the suitability of such areas for preservation as wilderness." 43 U.S.C. § 1782(c). To implement this directive, BLM adopted the Interim Management Policy and Guidelines for Lands Under Wilderness Review ("IMP"). ² See Rocky Mountain Oil, 696 F.2d at 739.

BLM initially reviewed approximately 22 million acres of federal public lands in Utah and identified approximately 14.5 million acres that "clearly and obviously" did not contain wilderness characteristics. See 44 Fed.Reg. 46,541 (1979). BLM subsequently conducted an intensive inventory of approximately 5.2 million acres to determine the presence or absence of wilderness characteristics. See 45 Fed.Reg. 20,576 (1980); 45 Fed.Reg. 27,831 (1980). In 1980, BLM completed the inventory phase of the § 603 wilderness review process for public lands in Utah and, after a public comment period, published its final inventory decision designating approximately 2.5 million acres as WSAs. See 45 Fed.Reg. 75,602 (1980). In 1991, after lengthy administrative appeals, ³ then-Secretary Manuel Lujan, Jr. recommended to President George Bush that approximately 1.9 million acres be designated as wilderness. See BLM, U.S. Dep't of the Interior, Utah Statewide Wilderness Study Report 3 (1991). Shortly thereafter, President Bush forwarded the 1.9 million acre recommendation to Congress. Although various groups, including the Utah congressional delegation, have supported legislation to designate federal lands in Utah as wilderness, ⁴ Congress has not yet passed any such legislation.

B. 1996 Inventory

On July 24, 1996, Secretary Babbitt sent a letter to Utah Congressman James Hansen acknowledging the "stalemate" on the Utah wilderness issue and informing him that "a small team of career professionals, who have substantial expertise in addressing wilderness issues in Utah and elsewhere," were going to "take a careful look at the lands identified in the 5.7 million acre bill [H.R. 1500] that have not been identified by the BLM as wilderness study areas, and report their findings." ⁵ Letter from Bruce Babbitt, Secretary of the Interior, to James V. Hansen, Chairman, Subcommittee on National Parks, Forests, and Public Lands 2 (July 24, 1996). Babbitt noted the team was "explicitly instructed to apply the same legal criteria that were used in the original inventory" and estimated the work would be completed within six months. Id.

Although Representative Hansen, along with Utah Senators Orrin Hatch and Robert Bennett, strongly opposed Babbitt's plan to "re-inventory" federal lands in Utah, ⁶ the BLM team began its inventory fieldwork in September 1996. The team proceeded with the inventory in accordance with the Utah Wilderness Review Procedures ("1996 Procedures"), which were adopted by BLM specifically for purposes of the 1996 inventory and which incorporated various provisions of the WIH.

According to the Defendants in this action, the sole purpose of the 1996 inventory is to identify the presence or absence of wilderness characteristics on the public lands. They assert the report based on the inventory will not contain any recommendations concerning the suitability or unsuitability of the lands for management as wilderness and neither the inventory nor the report will affect the management of the public lands. Babbitt has consistently maintained that once he reviews the results of the inventory, he will make the report public and determine what further action, if any, will be taken.

C. Proceedings Below

In October 1996, the State of Utah, the Utah School and Institutional Trust Lands Administration, and the Utah Association of Counties (collectively, "Plaintiffs") filed suit in federal district court challenging the 1996 inventory on various grounds and seeking to enjoin the Secretary and BLM from proceeding with the inventory. Plaintiffs named as Defendants the Department of Interior; Babbitt, in his official capacity as Secretary; BLM; and Michael Dombeck, in his official capacity as acting director of BLM (collectively, "Defendants").

Plaintiffs alleged the following eight causes of action: (1) unauthorized inclusion of state trust lands in the lands being inventoried; (2) arbitrary and unequal treatment of Utah, in violation of the U.S. Constitution; (3) conducting the inventory without authority; (4) failure to provide for public involvement in the inventory, in violation of FLPMA; (5) failure to follow rule-making procedures when promulgating the 1996 Procedures, in violation of FLPMA; (6) de facto wilderness management of non-WSA federal lands, in violation of FL...