923 F.3d 860
10th Cir.2019Background
- The Forest Service (FS) designated a 2,380-acre high-elevation area of Manti-La Sal National Forest as the Mt. Peale Research Natural Area (RNA) to be kept "virgin or unmodified."
- Utah Division of Wildlife Resources (UDWR) released mountain goats on adjacent State land in 2013; goats moved into the national forest and RNA raising concerns about impacts on sensitive alpine plants.
- Grand Canyon Trust (GCT) demanded the FS (1) prohibit further UDWR releases on State lands, (2) require UDWR to obtain FS special-use authorization before releasing goats, and (3) immediately remove goats from the forest/RNA.
- FS declined to bar State releases or require permits for releases on State land, and declined immediate removal pending cooperative study and monitoring with UDWR.
- GCT sued under the Administrative Procedure Act (APA) alleging (A) unlawful agency action (5 U.S.C. §706(2)) in denying the three demands and (B) unlawful failure to act (5 U.S.C. §706(1)) to preserve the RNA.
- District court dismissed for lack of final agency action; 10th Cir. affirmed in part and affirmed dismissal of GCT’s failure-to-act claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FS denial of authority to prohibit State releases is final agency action and reviewable | FS unlawfully failed to prevent State from releasing goats that would harm the RNA; FS authority under Property Clause/Organic Act supports prohibition | FS lacks authority to regulate or prohibit UDWR activities on non-Federal land; State police powers over wildlife remain unless clearly preempted | Denial is final action but lawful; FS correctly concluded it lacked authority to bar State releases under cited federal law and regulation |
| Whether FS denial that UDWR must get special-use permits for releases is final and reviewable | UDWR knowingly released goats that would use FS land; releases are effectively State "use/occupancy" requiring permits | Goats were released on State land and are wild (ferae naturae); FS has not shown intent to preempt State wildlife management or that goats are government instrumentalities | Denial is final action but lawful; State releases do not require FS special-use authorization and goats’ wild status precludes treating them as State "occupancy" |
| Whether FS refusal to immediately remove goats (or other remedial action) is final agency action | FS must act now to restore RNA to "virgin or unmodified" condition under 36 C.F.R. §251.23; its delay is unlawful inaction | FS is studying impacts and developing monitoring; refusal to remove now is interim, non-final, and FS retains discretion on remedial method | Denial to remove immediately is not final agency action (agency decisionmaking ongoing); dismissal for lack of finality affirmed |
| Whether FS "wait and see" constitutes reviewable failure to act under APA §706(1) | Regulation mandates RNA be retained unmodified; FS unlawfully withheld a discrete, non-discretionary act to enforce it | §251.23 sets an objective but leaves remedial method to FS discretion; no discrete, ministerial action is prescribed that a court can compel | FS action is discretionary and procedural choices are not a discrete mandatory duty; §706(1) claim fails |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (agency action is "final" only when it consummates decisionmaking and determines rights or legal consequences)
- Kleppe v. New Mexico, 426 U.S. 529 (States retain broad wildlife police powers; federal ownership does not automatically displace state jurisdiction)
- Granite Rock Co. v. Int'l Bhd. of Teamsters, 480 U.S. 572 (preemption analysis; federal regulation must clearly signal intent to preempt)
- Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707 (field preemption/conflict preemption framework)
- Southern Utah Wilderness Alliance v. Norton, 542 U.S. 55 (APA §706(1) review limited to agency failures to take discrete, non-discretionary actions)
- Mountain States Legal Found. v. Hodel, 799 F.2d 1423 (10th Cir.) (wild animals are not government "instrumentalities" for purposes of treating their presence as a governmental occupation)
- Baldwin v. Fish & Game Comm'n, 436 U.S. 371 (recognizes states' primary role in wildlife management)
- Hunt v. United States, 278 U.S. 96 (Secretary's authority under Organic Act to protect forest resources, including removal of animals if necessary)