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Thursday, June 7, 2007

Blumm and Bosse on Norton v. SUWA

Michael C. Blumm and Sherry Bosse (Lewis & Clark) have posted Norton v. SUWA and the Unraveling of Federal Public Land Planning on SSRN.  Here's the abstract:

In 2004, in Norton v. Southern Utah Wilderness Association (SUWA), a unanimous Supreme Court ruled that environmentalists could not obtain injunctive relief against the failure of the Bureau of Land Management (BLM) to regulate growing off-road vehicle (ORV) use in federal wilderness study areas in Utah, despite a statutory directive that BLM prevent “impairment” of such areas, and despite BLM's promises in its land plan that it would monitor ORV use and close the areas if warranted. Justice Scalia's opinion for the Court acknowledged that the Administrative Procedure Act authorizes federal courts to compel action in the face of agency inaction, but decided that BLM's failure to act to prevent impairment was not actionable because Congress had not directed BLM to take a “discrete” action, instead leaving the agency with considerable discretion as to how to prevent impairment. The decision in SUWA has produced widespread ramifications: federal land managers have employed it to successfully insulate from judicial review a wide variety of federal actions as well as inactions. Moreover, the Bush Administration seized upon the decision as a justification for redefining national forest land plans as aspirational in nature, without any making any binding commitments as to particular authorized activities or land suitability. The Administration also moved to eliminate environmental review of national forest plans, claiming that under its redefinition plans produce no environmental effects, an effort that was subsequently stalled by the courts.

This article discusses these developments, maintaining that they are inconsistent with the congressional commitment to federal land planning made in 1976 in both the Federal Land Management and Policy Act and the National Forest Management Act. Thirty years ago, Congress created modern federal land planning as the cornerstone of greater public involvement in public land decisionmaking. SUWA and its aftermath have destroyed that vision, making public land plans virtually irrelevant and a large waste of taxpayer dollars. If effective public participation in federal land planning requires that the public be able to enforce the promises made in land plans, Congress must amend the authorizing statutes to restore federal land plans as legally significant commitments of public resources.

Ben Barros

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