Norton V. SUWA and the Unraveling of Federal Public Land Planning
Blumm, Michael C., Bosse, Sherry L., Duke Environmental Law & Policy Forum
In 2004, a unanimous Supreme Court ruled in Norton v. Southern Utah Wilderness Association (SUWA), 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. The Court acknowledged that the Administrative Procedure Act authorized federal courts to compel action in the face of agency inaction. However, the Court held 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 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 decision making. 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.
TABLE OF CONTENTS I. Background: Resource Planning on the Public Lands A. National Forest Planning B. BLM Land Planning C. Federal Investment in Land Planning II. Norton v. Southern Utah Wilderness Alliance: Undermining Federal Land Planning A. SUWA's Predecessors: Lujan v. National Wildlife Federation and Ohio Forestry Association v. Sierra Club B. The Conflict in SUWA: Unregulated ORV Use in WSAs C. The Supreme Court's Decision III. SUWA's Effect on Litigation in the Federal Courts A. Environmental Challenges Precluded by SUWA B. Supplemental EISs on Land Use Plans After SUWA C. Land Plan Challenges Not Barred by SUWA D. SUWA's Litigation Legacy IV. SUWA's Influence on Public Land Planning Policies A. The 2005 Forest Planning Rule Revisions B. The Proliferation of Categorical Exclusions V. Conclusion Appendix Appendix
In 1976, Congress committed to land use planning on federal public lands by enacting both the National Forest Management Act (NFMA) (1) and the Federal Land Policy and Management Act (FLPMA). (2) Signing NFMA into law, President Ford announced that the statute "reaffirms and further defines the concept of multiple use-sustained yield management and outlines policies and procedures for land management planning in the national forest system.... [T]his act guarantees the public full opportunity to participate in National Forest land and resource planning." (3) Actually, the Forest Service has engaged in some form of planning since the turn-of-the-century days of Gifford Pinchot, although the agency conducted its planning activities without significant congressional oversight or formal public involvement until the 1970s. …