Amicus Curiae Brief — Norton v. Southern Utah Wilderness Alliance

Supreme Court, U.S.

@) FILED

No. 101 FEB 7

= , erHiee ot THE CLERK

In The

Supreme Court of the Gnited States

¢

GALE NORTON,

Secretary of the Interior, et al.,

Petitioners,

v.

SOUTHERN UTAH

WILDERNESS ALLIANCE, et al.,

Respondents.

o

On Writ Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

¢

BRIEF OF AMICI CURIAE PROFESSORS OF

ADMINISTRATIVE AND ENVIRONMENTAL LAW

IN SUPPORT OF RESPONDENTS SOUTHERN

UTAH WILDERNESS ALLIANCE, ET AL.

o

WILLIAM D. ARAIZA ROBERT G. DREHER

LOYOLA LAW SCHOOL, GEORGETOWN ENVIRONMENTAL

Los ANGELES LAW & POLicy INSTITUTE

919 Albany Street GEORGETOWN UNIVERSITY

Los Angeles, CA 90015-1211 | LAW CENTER

(213) 736-8167 600 New Jersey Ave., N.W.

Washington, D.C. 20001

(202) 662-9364

Counsel of Record for Amici

February 17, 2004

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

7 OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

INTEREST OF AMICT .0...ccsccccecsesssssessesssseesesssesssenceneenes

SUMMARY OF ARGUMENT. .........sescsssssesessesseseeseeseeee

Il.

JUDICIAL REVIEW OF AGENCY ACTION IS

ESSENTIAL TO THE RULE OF LAW .............

A. Judicial Review Serves Important Societal

Interests in Promoting Fidelity to Con-

gressional Purposes, Guarding Against

Undue Influence of Private Interests Over

the Regulatory Process, and Supporting

Public Confidence in Government..............

B. Administrative Law Recognizes a Broad

Presumption That Judicial Review of

Agency Conduct is Available..................++++

AN AGENCY’S FAILURE TO IMPLEMENT A

STATUTORY MANDATE THREATENS THE

RULE OF LAW NO LESS THAN AFFIRMA-

TIVE AGENCY ACTION THAT VIOLATES

LEGAL REQUIREMENTG............::cceseesesseeeeees

A. The Concerns Supporting the Presumptive

Availability of Judicial Review for Agency

Action Apply With Equal Force to Agency

Inaction in Dereliction of Statutory Man-

B. Agency Inaction Poses a Particular Threat

to the Rule of Law by Defeating Congres-

sional Policies Intended to Benefit Broad

Public Interests ...............cccccccessseseeeeeeeeeeeeees

C. The Administrative Procedure Act Explic-

itly Affords Review of Agency Inaction.......

11

ii

TABLE OF CONTENTS - Continued

Page

III. THE FEDERAL COURTS HAVE AUTHORITY

UNDER THE APA TO REVIEW A FEDERAL

AGENCY’S INACTION THAT BREACHES A

STATUTORY DUTY WITH RESPECT TO

MANAGEMENT OF PUBLIC LANDG............. 17

A. BLM’s Assertion That the APA Precludes

Judicial Review of Its Failure to Comply

With a Mandatory Statutory Duty Mis-

reads the Text of the APA and Contravenes

Clear Congressional Intent...................0000 17

B. BLM’s Interpretation of the APA Would

Undermine Core Principles of Administra-

tive Law, Creating a Loophole Permitting

Agencies to Escape Judicial Review and

Establishing an Inappropriate Double-

Standard Favoring Regulated Entities Over

Beneficiaries of Statutory Mandates........... 26

C. Recognition of the Courts’ Authority to Re-

view an Agency’s Failure to Act That

Breaches a Statutory Duty Would Not

Lead to Impermissible Judicial Interfer-

ence in Agency Functions .................ccccc000+- 27

FOR AIG 0ccercesccncecssosesessisanessinssinnsnamsliannaaaannn 30

——

TABLE OF AUTHORITIES

Page

CASES

Abbott Laboratories v. Gardner, 387 U.S. 136

a. esnuneenennenenen 5, 6, 24

Air Line Pilots Ass’n v. CAB, 750 F.2d 81 (D.C. Cir.

sa seeenenstSOSORSSONOSS 29

Association of Data Processing Serv. Orgs., Inc. v.

Camp, 397 U.S. 150 (1970)..........ccccccceessseeeeeeeereeeereneenees i)

Bennett v. Spear, 520 U.S. 154 (1997)...........ccccccceeseeeeeeeees 25

Bowen v. Michigan Academy of Family Physicians,

a 5

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

Ia sreeerenemnnnenneeeee 6

Coalition for Sustainable Resources, Inc. v. United

States Forest Service, 259 F.3d 1244 (10th Cir.

ais ccerencncmspnansnsssnnsennentes 24

Estate of Smith v. Heckler, 747 F.2d 583 (10th Cir.

EES Eee CC 28

Frew v. Hawkins, 124 S.Ct. 899 (2004) ............cccccccccceeeeees 29

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)................... i)

Gutierrez de Martinez v. Lamagno, 515 U.S. 417

SS Ee 4,5

Heckler v. Chaney, 470 U.S. 821 (1985) .............ccceeeees 11, 19

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ......... 10

Lujan v. National Wildlife Federation, 497 U.S. 871

eae 19

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)........ 7,9

iv

TABLE OF AUTHORITIES -— Continued

MCI Telecommunications Corp. v. FCC, 627 F.2d

ee ee GE See rrcnnssnncesescersnsuvecnmnttamiisaninineniios

Miller v. Schoene, 276 U.S. 272 (1928)........:ccccccseeeeeeees

N.AA.C.P. v. Secretary of Housing and Urban

Development, 817 F.2d 149 (1st Cir. 1987)................

Public Citizen Health Research Group v. Chao, 314

ee eee

Rochester Tel. Corp. v. United States, 307 U.S. 125

i cnededupnainnnsainniniianninintasenteseeiaiin teeta so ieahS

Roth v. Board of Regents, 408 U.S. 564 (1972).............

Shalala v. Illinois Council on Long Term Health

eS eee

Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir.

GIDIN D ccesenscecsnsonssessssnsesssunanesnsatsenieenibcsmmenenimsmenataeanitins

Standard Oil of Calif. v. Federal Trade Comm’n,

596 F.2d 1381 (Sth Cir. 1979) .................cccccccccccssseeees

Telecommunications Research and Action Center v.

FCC, 750 F.2d 70 (D.C. Cir. 1984) 00.0.0... eee eeeeees

United States v. Nourse, 34 U.S. (9 Pet.) 8 (1835)........

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, 435 U.S. 519 (1978).......

West Coast Hotel v. Parrish, 300 U.S. 379 (1937).........

Whitman v. American Trucking Associations, Inc..

ee Ce Ce cccreninniitnintatatiaiiiniintnineati titi ais

v

TABLE OF AUTHORITIES - Continued

Page

STATUTES

Administrative Procedure Act, 5 U.S.C. §§ 551 et

BBE), ocsccccccescececcsscnscsscccoocessoooscessoososssssosoossssssoqsososesses passim

MO On 2, 17, 18, 21, 22

ee 19

iss Se Se ccicnntacessesatnninaminenntiecionmaumauenntapasinhadl 6, 18

Oe 2, 5, 17, 18, 23

| aa 23, 24

ff | ae 23

OE II... ccsivisiniccciinsionnsinisuiapiieeniididaiiia passim

ho) eee 20, 21, 23

Federal Land Policy and Management Act, 43

Sy © ED conccecssssnnnssnnssenenncensantaiemmineemmennienen 18, 19

LEGISLATIVE HISTORY

S. Rep. No. 79-752, (1945) reprinted in ADMINISTRA-

TIVE PROCEDURE ACT: LEGISLATIVE HISTORY 79TH

ee passim

H.R. Rep. No. 79-1980 (1946) reprinted in ADMINIS-

TRATIVE PROCEDURE ACT: LEGISLATIVE HISTORY

Eee passim

S. Doc. No. 8, ADMINISTRATIVE PROCEDURE IN

GOVERNMENT AGENCIES (1941) .............ccccccceeeeeeeseeeeeeeees 15

LAW REVIEW ARTICLES AND TEXTS

Bruce A. Ackerman, Beyond Carolene Products, 98

BRaaee. Te. TRU. TED Cie ecececccccncesesnacsscscssssssenssesnesansesens 12

vi

TABLE OF AUTHORITIES -— Continued

S. BREYER, R. STEWART, C. SUNSTEIN & M. SPITZER,

ADMINISTRATIVE LAW AND REGULATORY POLICY

ERI eee U NONE NCEE NT OFTEN 4,

Bureau of Land Management, U.S. Dep’t of Inte-

rior, HANDBOOK § 8550-1, Interim Management

Policy for Lands Under Wilderness Review.................-.

William W. Buzbee, Expanding the Zone, Tilting the

Field: Zone of Interests and Article III Standing

Analysis After Bennett v. Spear, 49 ADMIN. L.

SEER Sa SEE eee ees SON Seno ED

Davip M. DRIESEN, THE ECONOMIC DYNAMICS OF

ENVIRONMENTAL LAW (20038) ...............cccccccecccsseeeceeeeeeeee

E. Donald Elliot et al., Toward a Theory of Statu-

tory Evolution: The Federalization of Environ-

mental Law, 1 J.L. ECON. & ORG. 313 (1985) ...............

LOUIS JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE

| Ene nee ans ee rE

Peter H.A. Lehner, Note, Judicial Review of

Administrative Inaction, 83 COLUM. L. REV. 627

Jonathan Macey, Promoting Public-Regarding

Legislation Through Statutory Interpretation: An

Interest Group Model, 86 CoLuM. L. REV. 223

STEITET estentctasinesnninenateiniilaiampnsiannsneuneniinsinmiuentibiainbapeimeuimememennts

Henry P. Monaghan, Marbury and the Administra-

tive State, 83 COLUM. L. REV. 1 (1983) .........0..000...00c..0ee

ROGER G. NOLL & BRUCE M. OWEN, THE POLITICAL

ECONOMY OF DEREGULATION: INTEREST GROUPS IN

THE REGULATORY PROCESS (1983) ...............cccccccceeeeeeeeeee

Vii

TABLE OF AUTHORITIES - Continued

Page

MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION

EERE arse nara Ne eT Nene 12

RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW

ll 3, 13

Richard J. Pierce, Jr., Seven Ways to Deossify

Agency Rulemaking, 47 ADMIN. L. REV. 59 (1995)........ 14

Robert A. Schapiro & William W. Buzbee, Unidi-

mensional Federalism: Power and Perspective in

Commerce Clause Adjudication, 88 CORNELL L.

i Ee a 8

Kay SCHLOZMAN & JOHN T. TIERNEY, ORGANIZED

INTERESTS AND AMERICAN DEMOCRACY (1986)............... 13

Daniel P. Selmi, Jurisdiction to Review Agency

Inaction Under Federal Environmental Law, 72

OF ee 24

Richard Stewart, The Reformation of American

Administrative Law, 88 Harv. L. REv. 1669

ee i caaereerencalaatiatitaaaatatiasitinenliaaaisin Taian 13

Richard Stewart & Cass Sunstein, Public Programs

and Private Rights, 95 HARV. L. REV. 1193 (1982).......... 3

Cass R. Sunstein, Constitutionalism After the New

Deal, 101 HARV. L. REV. 421 (1987).............ccccccceeeseereeeees 8

Cass R. Sunstein, Reviewing Agency Inaction

After Heckler v. Chaney, 52 U. CuI. L. REv. 653

TIT ccucnesdeuniniastabenetniemmmeniteniieuentes sdemeauiinndat 3, 4, 7, 8, 10

1

INTEREST OF AMICI

The professors of law listed in the appendix, each of

whom teaches and conducts research in the fields of adminis-

trative and/or environmental law, submit this brief amicus

curiae in support of the respondents Southern Utah Wilder-

ness Society, et al.’ The amici have substantial expertise

relevant to the questions of administrative law presented in

this case, and strong professional interests in the develop-

ment of legal rules that promote agency fidelity to public

policies established by law and that assure fair and equitable

access to the courts for persons whose interests are injured

by agency misconduct.

This case raises a fundamental issue of administrative

law: whether the federal courts have jurisdiction under

the Administrative Procedure Act (“APA”) to review

inaction by a federal agency when that inaction violates a

nondiscretionary statutory mandate imposed by Congress.

That question goes to the heart of modern administrative

law, which is fundamentally concerned with the relation-

ships among agencies, other institutions of government,

and the public, and in particular with the legal principles

that constrain and direct the actions of administrative

agencies to ensure their fidelity to policies established by

law. Amici submit this brief to provide the Court with a

fuller understanding of the principles of administrative

_law that properly should inform this Court’s decision.

* Counsel for the parties have consented to the filing of this brief.

No counsel for a party in this case authored this brief in whole or in

part, and no person or entity, other than amici or their counsel, made a

monetary contribution to the brief’s preparation or submission.

2

SUMMARY OF ARGUMENT

Judicial review is central to the rule of law, serving as an

essential check on administrative action that disregards

legislative mandates or constitutional rights. For this reason,

the courts have long recognized a presumption in favor of

providing judicial review of executive action. The modern

understanding of administrative law recognizes that agency

inaction that is in dereliction of a statutory command can

inflict injury on legally-protected interests that is as damaging

as affirmative agency action taken in violation of statutory

limitations. For these reasons, the APA explicitly provides for

judicial review of an agencys failure to act. 5 U.S.C.

§§ 551(13), 702.

The position taken by the Bureau of Land Manage-

ment (“BLM”) in this case — that the federal courts lack

jurisdiction to hear claims that federal agencies have

failed to carry out legislative mandates except in the most

limited circumstances — conflicts with these basic princi-

ples of modern administrative law. BLM’s legal argument

misreads the relevant language of the APA, and disregards

Congress's clear intent that the APA “afford a remedy for

every legal wrong.” S. Rep. No. 79-752, at 7 (1945). BLM’s

position would, if accepted by this Court, create a signifi-

cant gap in the ability of the courts to constrain executive

agencies to follow the will of Congress. It would also

establish a fundamental imbalance in the ability of per-

sons whose interests are injured by federal agency mis-

conduct to obtain a remedy, improperly favoring those who

are regulated directly by agency action while disfavoring

the beneficiaries of statutory mandates established to

protect and promote specific public interests. Both out-

comes would undermine the rule of law in this country.

3

ARGUMENT

I. JUDICIAL REVIEW OF AGENCY ACTION IS

ESSENTIAL TO THE RULE OF LAW

A. Judicial Review Serves Important Societal In-

terests in Promoting Fidelity to Congressional

Purposes, Guarding Against Undue Influence

of Private Interests Over the Regulatory Proc-

ess, and Supporting Public Confidence in Gov-

ernment

Judicial review of agency action serves important

societal purposes, broadly embodied in the notion of the

rule of law.’ Judicial review promotes fidelity by agencies

to statutory directives and guards against undue influence

by private interests in the regulatory process.* The lack of

normal safeguards of electoral accountability and separa-

tion of powers for administrative agencies makes concerns

regarding factional influence over governmental processes

and disregard of democratically-reached public policies

especially intense in the administrative context.‘ The

availability of judicial review for persons injured by

agency action moderates these concerns, serving as an

* See LOUIS JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

320-27 (1965); Richard Stewart & Cass Sunstein, Public Programs and ~

Private Rights, 95 HARV. L. REV. 1193, 1203 (1982) (discussing functions

of rule of law).

* See RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 16.11

(4th ed. 2002) (judicial review furthers two related goals: “(1) reduction

of the risk that agencies will engage in lawless conduct and (2) reduc-

tion of the risk that agency decisionmaking will be infected by factional

bias”); Henry P. Monaghan, Marbury and the Administrative State, 83

CoLus. L. REV. 1, 33 (1983).

* Cass R. Sunstein, Reviewing Agency Inaction After Heckler v.

Chaney, 52 U.CHI. L. REV. 653, 655 (1985).

4

essential constraint upon the exercise of arbitrary or venal

power by administrative agencies.” »

The role of judicial review in assuring the rule of law

is deeply rooted in our governmental system. Justice

Thomas has observed: “Our constitutional structure

contemplates judicial review as a check on administrative

action that is in disregard of legislative mandates or

constitutional rights.” Shalala v. Illinois Council on Long

Term Health Care, Inc., 529 U.S. 1, 44 (Thomas, J., dis-

senting).° As this Court has noted, Chief Justice Marshall

“long ago captured the essential idea” when he observed

that “‘a government of laws and of principle’” could not

leave persons injured by unlawful official conduct without

a remedy. Gutierrez de Martinez v. Lamagno, 515 U.S. 417,

424 (1995), quoting United States v. Nourse, 34 U.S. (9

Pet.) 8, 28-29 (1835). In the largest sense, judicial review

“provides, and has always provided, vital legitimacy to

actions of administrative agencies in the American system

of government.” Peter H.A. Lehner, Note, Judicial Review

of Administrative Inaction, 83 COLUM. L. REV. 627 (1983).

* See Sunstein, Reviewing Agency Inaction, supra, at 656 (noting

that the prospect of review increases the likelihood of fidelity to

substantive and procedural norms during the decision making process

long before judicial review is invoked).

* See S. BREYER, R. STEWART, C. SUNSTEIN & M. SPITZER, ADMINIS-

TRATIVE LAW AND REGULATORY POLICY 985 (5th ed. 2002) (“[T]he

presumption of review owes its source to considerations of accountabil-

ity and legislative supremacy, ideas embodied in article I, and also to

rule of law considerations, embodied in the due process clause. . . . ”).

-——-

Oe i A a NR tm

5

B. Administrative Law Recognizes a Broad Pre-

sumption That Judicial Review of Agency

Conduct is Available

For these reasons, the federal courts have historically

adopted a presumption in favor of the availability of

judicial review of agency action. The Court concluded in

Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967),

that “a survey of our cases shows that judicial review of a

final agency action by an aggrieved person will not be cut

off unless there is persuasive reason to believe that such

was the purpose of Congress.” Thus, “federal judges

traditionally proceed from the ‘strong presumption that

Congress intends judicial review.’” Gutierrez de Martinez,

supra, 515 U.S. at 424 (quoting Bowen v. Michigan Acad-

emy of Family Physicians, 476 U.S. 667, 670 (1986)).

The Court recognized in Abbott Laboratories that the

general expectation in administrative law that judicial review

be available was “reinforced” by the enactment of the Admin-

istrative Procedure Act. 387 U.S. at 140. The APA “embodies

the basic presumption of judicial review to one ‘suffering legal

wrong because of agency action, or adversely affected or

aggrieved by agency action.’” Jd. (quoting 5 U.S.C. § 702). The

framers of the APA designed the judicial review provisions of

the Act to “afford a remedy for every legal wrong,” S. Rep. No.

79-752, at 7 (1945) (hereinafter S. Rep.), reprinted in ADMINIS-

TRATIVE PROCEDURE ACT: LEGISLATIVE History 79TH CON-

GRESS at 193 (1946) (hereinafter LEG. His.); H.R. Rep. No. 79-

1980, at 17 (1946) (hereinafter H.R. Rep.), reprinted in LEG.

His. at 251,’ and defined “agency action” broadly to “assure

” For convenience, references to the legislative history of the APA

are hereinafter made to the published volume, and cited as LEG. HIs.

6

the complete coverage of every form of agency power, proceed-

ing, action or inaction.” LEG. His. at 198 (S. Rep.); 255 (H.R.

Rep.). This Court has accordingly recognized that the Act “is

meant to cover comprehensively every manner in which an

agency may exercise its power,” Whitman v. American Truck-

ing Associations, Inc., 531 U.S. 457, 478 (2001), and empha-

sized that the Act’s “‘generous review provisions’ must be

given a ‘hospitable’ interpretation.” Abbott Laboratories,

supra, 387 U.S. at 141. Thus, “only upon a showing of ‘clear

and convincing evidence’ of a contrary legislative intent should

the courts restrict access to judicial review.” Id.°

II. AN AGENCY’S FAILURE TO IMPLEMENT A

STATUTORY MANDATE THREATENS THE

RULE OF LAW NO LESS THAN AFFIRMATIVE

AGENCY ACTION THAT VIOLATES LEGAL

REQUIREMENTS

A. The Concerns Supporting the Presumptive

Availability of Judicial Review for Agency

Action Apply With Equal Force to Agency

Inaction in Dereliction of Statutory Man-

dates

From its earliest days, this Court has recognized that

judicial relief is warranted where an executive officer has

* While the Act creates exceptions to the presumption of review-

ability, the exceptions are narrow: judicial review of an agency’s final

action will be denied only where it is (1) expressly precluded by statute

or (2) committed by law to an agency’s discretion. 5 U.S.C. § 701(a). See

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)

(exception for action “committed to agency discretion” applicable only in

“rare instances where statutes are drawn in such broad terms that in a

given case there is no law to apply”) (internal quotations omitted). BLM

does not invoke either exception in this case.

7

failed to perform a mandatory duty. Faced with a request

for mandamus to compel an administrative action -—

delivery of executed commissions of appointment to office

— alleged to have been withheld unlawfully by the Secre-

tary of State, Justice Marshall observed in Marbury v.

Madison, 5 U.S. (1 Cranch) 137 (1803), that “[t]he very

essence of civil liberty certainly consists in the right of

every individual to claim the protection of the laws,

whenever he receives an injury.” Jd. at 163. That basic

right to a judicial remedy extends, as Justice Marshall

made resoundingly clear in Marbury, to administrative

inaction that impairs legal rights, no matter how lofty the

public officer may be: “[W]here a specific duty is assigned

by law, and individual rights depend upon the perform-

ance of that duty, it seems equally clear that the individ-

ual who considers himself injured, has a right to resort to

the laws of his country for a remedy.” Jd. at 166.

The need for the courts to provide a remedy for unlaw-

ful administrative defaults has become more compelling.

and better recognized, as the modern administrative state

has evolved. The development of modern administrative

law can be traced in significant measure from the recogni-

tion that statutorily-granted rights have equal entitlement

to judicial protection as traditional common-law rights.”

The pre-New Deal understanding of the role of the courts

in reviewing administrative conduct was based on the

assumptions that market ordering within the constraints

of the common law formed a natural baseline, and that the

* Indeed, “[t]he rise of the modern regulatory state results in large

part from an understanding that government ‘inaction’ is itself a

decision and may have serious adverse consequences for affected

citizens.” Sunstein, Reviewing Agency Inaction, supra, at 683.

8

courts should accordingly be vigilant to protect traditional

private rights from improper government intervention.” This

traditional paradigm constrained the courts’ willingness to

respond to claims of agency failure to act: the presumption in

favor of the existing status quo amounted to a “one-way

ratchet” imposing legally enforceable restraints on govern-

ment regulation, but not on inaction, while the beneficiaries

of such regulation, lacking traditional liberty or property

interests, were relegated to the political process when

agencies failed to implement the law.”

Modern administrative law, developed in parallel with

the rise of the modern regulatory state, has decisively

rejected this limited view of courts’ role in vindicating

statutorily-granted rights. As recognized by the courts and

legal scholars for nearly three-quarters of a century,

common-law rights and statutory rights equally reflect

policy judgments by government decision makers. Thus,

nothing about the common law basis of a right endows it

with higher status than a right the legislature has found

appropriate to bestow.” From early in the 20th Century, this

Court’s decisions recognized that common law ordering is

* See Cass R. Sunstein, Constitutionalism After the New Deal, 101

Harv. L. REv. 421, 474-75, 501-03 (1987).

" Sunstein, Reviewing Agency Inaction, supra, at 666-67.

” See, e.g., Robert A. Schapiro & William W. Buzbee, Unidimen-

sional Federalism: Power and Perspective in Commerce Clause Adjudi-

cation, 88 CORNELL L. REV. 1199, 1204 n.18 (2003) (“The New Deal

Court’s rejection of Lochner recognized the artificiality of a privileged

legal status quo. In validating the modern regulatory state, the New

Deal Court acknowledged the parity of targets and beneficiaries of

regulation.... Only if the enforcement of contract, property, and

trespass laws is ignored can the economics of ‘laissez-faire’ be under-

stood to reflect the absence of governmental intervention.”).

9

not a natural status quo, and that both action and inaction

reflect government choices. West Coast Hotel v. Parrish, 300

U.S. 379, 399 (1937) (suggesting that in the absence of

minimum wage laws community relief programs would

“provide what is in effect a subsidy for unconscionable

employers”); Miller v. Schoene, 276 U.S. 272, 279 (1928) (“It

would have been none the less a choice if, instead of enacting

the present statute, the state, by doing nothing, had permit-

ted serious injury . . . to go on unchecked.”).

Modern administrative law reflects this understand-

ing. Thus, for example, modern procedural due process

doctrine recognizes that statutorily-granted interests, no

less than traditional common-law rights, may constitute

property subject to constitutional protections. See Roth v.

Board of Regents, 408 U.S. 564 (1972). Similarly, this

Court’s standing decisions have dispensed with any

requirement that a plaintiff possess a “legal right” in favor

of a looser requirement that the plaintiff suffer actual

injury that is “arguably within the zone of interests

protected by a statute.” See Association of Data Processing

Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). The

need for the modern judiciary to be sensitive to the vindi-

cation of statutorily-granted rights has been expressed

eloquently by Justice Kennedy:

As Government programs and policies become

more complex and farreaching, we must be sensi-

tive to the articulation of new rights of action

that do not have clear analogs in our common-

law tradition. Modern litigation has progressed

far from the paradigm of Marbury suing Madison

to get his commission, Marbury v. Madison, 5

U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), or Ogden

seeking an injunction to halt Gibbons’ steamboat

operations, Gibbons v. Ogden, 22 U.S. (9 Wheat.)

1, 6 L.Ed. 23 (1824). In my view, Congress has

the power to define injuries and articulate chains

10

of causation that will give rise to a case or con-

troversy where none existed before. . . .

Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992)

(Kennedy, J. concurring).

The modern understanding that the common law does

not form a natural baseline, and that statutorily-conferred

rights are as deserving of judicial protection as common law-

based rights, compels recognition that agency inaction in

dereliction of a statutory mandate is as threatening to legally-

protected interests as agency action that violates statutory

requirements. Just as holders of common law rights may find

their interests injured by governmental regulation that alters

the pre-existing status quo, the holders of statutorily-granted

rights are vulnerable to an agency’s failure to act that leaves

intact a harmful status quo. The very establishment of

statutory programs, and the creation of agencies to administer

them, reflect Congress’s recognition that interests not recog-

nized by the common law deserve governmental protection,

and the failure of an agency to implement a Congressional

command directly harms those statutorily-protected inter-

ests.’ Nonimplementation of a statutory mandate intended to

promote societal interests in health and welfare, for example,

can result in the public's continued exposure to pollutants,

safety hazards, unfair trade practices, or other evils that

Congress sought to eliminate, or in the degradation of lands

held by law as a resource for public use and enjoyment.

Nonimplementation also erodes faith in the legal system,

undermining government legitimacy."

* Sunstein, Reviewing Agency Inaction, supra, at 630.

‘* See Lehner, Judicial Review of Administrative Inaction, supra, at

630.

11

For these reasons, as Justice Frankfurter recognized

in Rochester Tel. Corp. v. United States, 307 U.S. 125, 140-

42 (1939), the distinction between inaction and action in

the context of modern administrative law “is as unillumi-

nating and mischief-making a distinction as the outmoded

line between ‘nonfeasance’ and ‘malfeasance.’” The role of

judicial review in promoting adherence to statutory goals,

and in guarding against arbitrary decision making, is as

vitally necessary with respect to agency defaults as to

agency excesses.”

B. Agency Inaction Poses A Particular Threat

to the Rule of Law by Defeating Congres-

sional Policies Intended to Benefit Broad

Public Interests

By threatening the accomplishment of programs

adopted by Congress to benefit broad public interests,

agency inaction may be particularly threatening to the

rule of law. Many regulatory statutes seek to benefit

interests held by a wide class of people. Indeed, a primary

“ This Court has recognized that the decision to commence

enforcement proceedings has traditionally been viewed as committed to

agency discretion. Heckler v. Chaney, 470 U.S. 821, 832 (1985). The

Court noted that such decisions are only “presumptively unreviewable,”

however, id., and emphasized that judicial review of agency inaction is

appropriate even with respect to enforcement matters where the

governing statute provides meaningful standards to restrain the

agency's discretion. Jd. at 834. The Court's recognition of a rebuttable

presumption for enforcement discretion thus does not undercut the

general principle that an agency’s failure to act is subject to review

where there is “law to apply.” As the Court noted: “[I)n establishing this

presumption in the APA, Congress did not set agencies free to disregard

legislative direction in the statutory scheme that the agency adminis-

ters.” Id. at 833.

12

justification for statutory regulation is to ensure that a

diffuse public interest is served, for example, by providing

a public good.” But the very diffuseness of the public

interest often renders beneficiaries less politically influen-

tial than those whom the statute regulates. Individual

regulated parties tend to feel the burdens of regulation

more sharply than individual beneficiaries feel the benefit.

Thus, political vindication of beneficiary interests may

encounter serious collective action problems.” Such

problems include free-rider issues: when the benefit of a

statute is generally available no individual beneficiary

may be motivated to defend it, preferring instead to “free-

ride” on the effort of other beneficiaries.” Moreover,

advocates of broadly-shared interests may face serious

transaction costs, in identifying like-minded individuals,

for example, and convincing them to pursue concerted

political action.” By contrast, regulated parties may be

smaller in number, be more familiar with each other by

virtue of engaging in the same regulated activity, and feel

regulatory burdens more acutely.” Moreover, regulated

parties may have far superior financial resources to bring

to bear on regulatory processes affecting their economic

* See, e.g., BREYER, ADMINISTRATIVE LAW AND REGULATORY POLICY

7 (5th ed. 2002).

" See generally MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION

(1965); PIERCE, ADMINISTRATIVE LAW TREATISE, § 16.11 (4th ed. 2002).

* See, e.g., Jonathan Macey, Promoting Public-Regarding Legisla-

tion Through Statutory Interpretation: An Interest Group Model, 86

CoLusM. L. REv. 223, 231 n.44 (1986); E. Donald Elliot, et al., Toward a

Theory of Statutory Evolution: The Federalization of Environmental

Law, 1J.L. Econ. & OrG. 313, 342 (1985).

* See, e.g., OLSON, supra, at 48; see also Bruce A. Ackerman,

Beyond Carolene Products, 98 Harv. L. REV. 713 (1985).

* See OLSON, supra, at 33-36; Macey, supra n.10, at 229.

13

interests.” As a result, regulated parties often exert more

effective political influence than regulatory beneficiaries.”

The relative ineffectiveness of diffuse public interests

in the political process combines with “agency capture,”

the tendency of regulatory agencies over time to become

the servants of the interests they are ostensibly regulat-

ing, to undercut the ability of statutory beneficiaries to

protect and vindicate their interests through political or

administrative channels. As Professor Richard Stewart

has observed, “It has become widely accepted, not only by

public interest lawyers, but by academic critics, legisla-

tors, judges and even by some agency members, that the

comparative over-representation of regulated or client

interests in the process of agency decision results in a

persistent policy bias in favor of these interests.” Richard

Stewart, The Reformation of American Administrative

Law, 88 Harv. L. Rev. 1669, 1713 (1975).”

In the absence of effective judicial review for agency

failures to implement a statutory mandate, the statute’s

beneficiaries would thus face serious difficulty in obtaining

redress, either from the agency or from the political

process. Requiring citizens to return to the political

* See DaviD M. DRIESEN, THE ECONOMIC DYNAMICS OF ENVIRON-

MENTAL LAW 114-116 (2003) (noting that regulated industries routinely

devote a portion of their revenues to hire lawyers, lobbyists and

scientists to argue against strict regulation of their activities, and

therefore participate very heavily in regulatory processes).

*™ See, e.g., KAY SCHLOZMAN & JOHN T. TIERNEY, ORGANIZED

INTERESTS AND AMERICAN DEMOCRACY 400 (1986); RoceR G. NOLL &

BRUCE M. OwEN, THE POLITICAL ECONOMY OF DEREGULATION: INTEREST

GROUPS IN THE REGULATORY PROCESS 41-53 (1983).

* See also PIERCE, ADMINISTRATIVE LAW TREATISE § 16.11 (citing

studies documenting capture).

14

process to enforce legislative victories already obtained

would impose a double and unfair burden on them. More-

over, in the absence of a credible threat of judicial scrutiny

at the behest of statutory beneficiaries, the tendency of an

agency to skew its decision making in favor of regulated

entities, who can readily obtain review of agency action

affecting their interests, would be exacerbated.”

C. The Administrative Procedure Act Explic-

itly Affords Review of Agency Inaction

Concerns about the failure of existing legal and

administrative mechanisms to protect the interests of

regulatory beneficiaries’ underlie the adoption of the

Administrative Procedure Act. In its 1941 report, the

Attorney General’s Committee on Administrative Proce-

dure found that judicial review effectively checked agency

excesses in derogation of private legal rights, but stated:

From the point of view of public policy and public

interest, it is important not only that the adminis-

trator should not improperly encroach on private

* See, e.g., William W. Buzbee, Expanding the Zone, Tilting the

Field: Zone of Interests and Article III Standing Analysis After Bennett

v. Spear, 49 ADMIN. L. REV. 763, 768-72 (1997); Richard J. Pierce, Jr.,

Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 87-88

(1995) (“[OjJnce agencies know that statutory beneficiaries cannot

invoke judicial enforcement of the duty to engage in reasoned decision

making, agencies can safely ignore comments filed by beneficiaries. . . .

All regulatory agencies will soon resemble the Interstate Commerce

Commission (ICC) of the 1950’s.”).

. TP Re ae

15

right but also that he should effectively discharge

his statutory obligations. Excessive favor of pri-

vate interest may be as prejudicial as excessive

encroachment.... A Federal Trade Commission

may violate the legislative policy and cause harm

to private interests by failing to investigate and

detect unfair methods of competition as well as

b, overzealously condemning fair methods.

S. Doc. No. 8, ADMINISTRATIVE PROCEDURE IN GOVERNMENT

AGENCIES 76 (1941). The Committee observed that judicial

review at that time was rarely available to compel effec-

tive enforcement of the law by administrators, and noted

that “the problem of whether the administrator’s refusal to

take action is reviewable remains.” Jd. at 86.

Some bills introduced during Congress’s consideration

of the APA addressed the problem identified by the Attor-

ney General’s Committee in only limited ways. Provisions

for judicial review of agency conduct in various House bills

either ignored the issue of inaction, see LEG. His. at 131-39

(H.R. 184), or offered a remedy for inaction only where an

agency’s action was “short of statutory right, grant, privi-

lege or benefit” or for an agency’s “neglect, failure, or

refusal” to act upon “applications” to the agency for a rule,

order, or permission. LEG. His. at 145-46 (H.R. 339); 154

(H.R. 1117); see also 176 (H.R. 1206) (judicial review

provided for final decisions “rendered pursuant to the

formal procedures provided herein”).

In contrast, however, the Senate bill that ultimately

became the APA, S.7, took a broad approach to judicial

review, in order to “afford a remedy for every legal wrong.”

Lea. His. at 193 (S. Rep.). See LEG. His. at 192 (S. Rep.)

(noting that S.7 “contains more comprehensive provisions

for judicial review for the redress of any legal wrong” than

a predecessor bill). The Senate bill defined “agency action”

16

expansively as including affirmative actions such as rules,

orders, licenses, etc., and the denial of such affirmative

relief. LEG. His. at 218 (S.7). However, to “assure the

complete coverage of every form of agency power, proceed-

ing, action, or inaction,” LEG. His. at 198 (S. Rep.), S.7

went farther by explicitly adding the term “failure to act”

to the definition of agency action. LEG. HIs. at 218 (S.7)

(emphasis added).” The judicial review provisions of the

Senate bill incorporated the broad definition of agency

action, affording a right of review to “[a]ny person suffer-

~ ing legal wrong because of any agency action, or adversely

affected or aggrieved by such action within the meaning of

any relevant statute.” LEG. His. at 222 (S.7) (emphasis

added). Finally, S.7 explicitly affirmed the power of the

reviewing court to “compel agency action unlawfully

withheld or unreasonably delayed.” Jd.”

* None of the other bills then under consideration before the 79th

Congress, including H.R. 1203, the bill introduced in the House as a

counterpart to S.7, included this term. See generally LEG. His. at 131-83

(setting forth text of House bills under consideration), 156 (H.R. 1203).

* These provisions received favorable attention in the Congres-

sional debate preceding enactment of the APA. Senator McCarran,

Chairman of the Senate Judiciary Committee that authored the bill,

emphasized the bill’s provisions for judicial review, noting that “it is

something in which the American public has been and is much con-

cerned, harkening back, if we may, to the Constitution of the United

States, which sets up the judicial branch of the Government for the

redress of human wrongs and for the enforcement of human rights.”

LEG. His. at 305. Congressman Springer of Indiana placed particular

emphasis on the provision empowering reviewing courts to compel

agency action unlawfully withheld or unreasonably delayed, noting: “In

many of those cases there has been a withholding or a long delay, and

that particular feature is intended to hasten action on the part of these

agencies. I feel confident each Member will approve that provision in

this bill.” Lec. His. at 377.

—

17

The provisions of the Senate bill providing expansive

judicial review were enacted unchanged in the final

Aiministrative Procedure Act.” See 5 U.S.C. §§ 551(13)

(definition of “agency action”); 702 (right of review); 706(1)

(scope of review to compel agency action). The APA thus

provided a comprehensive remedy for agency inaction, in

keeping with the Congressional determination “to afford a

remedy for every legal wrong.”

Ill. THE FEDERAL COURTS HAVE AUTHORITY

UNDER THE APA TO REVIEW A FEDERAL

AGENCY’S INACTION THAT BREACHES A

STATUTORY DUTY WITH RESPECT TO MAN-

AGEMENT OF PUBLIC LANDS

A. BLM’s Assertion That the APA Precludes

Judicial Review of Its Failure to Comply

With A Mandatory Statutory Duty Misreads

the Text of the APA and Contravenes Clear

Congressional Intent Hs

The Federal Land Policy and Management Act im-

poses a clear, mandatory duty upon the Secretary of the

Interior with respect to management of federal lands

identified as potential wilderness areas: “During the

period of review of such areas and until Congress has

determined otherwise, the Secretary shall continue to

manage such lands according to his authority under this

Act and other applicable law in a manner so as not to

” The bill enacted was a House substitute for S.7 that incorporated

its terms with minor revisions and additions; the definition of “agency

action” and the provisions for judicial review were substantively

unchanged. See LEG. HIS. at 284, 288-89.

18

impair the suitability of such areas for preservation as

wilderness.... ” 43 U.S.C. § 1782(c) (emphases added).

The Department of the Interior has adopted formal guid-

ance interpreting what constitutes “impairment” of the

suitability of wilderness study areas. See BLM, U.S. Dep't

of Interior, HANDBOOK § 8550-1, Interim Management

Policy for Lands Under Wilderness Review. BLM’s guid-

ance recognizes that the cross-country operation of motor

vehicles impairs the wilderness values of such areas by

creating new tracks and roads, and prohibits the agency

from permitting such motor vehicle use within wilderness

study areas except in emergencies or for official purposes.

Id. Ch. 1.B.3, 1.B.11.

A failure by the Secretary to fulfill her affirmative

duty to manage potential wilderness areas so as to main-

tain their suitability for preservation as wilderness consti-

tutes a “failure to act” within the plain meaning of the

APA, and is thus subject to judicial review under that Act.

The Act includes “failure to act” within the definition of

“agency action” subject to judicial review, 5 U.S.C.

§§ 551(13), 702, and authorizes the courts to “compel

agency action unlawfully withheld or unreasonably de-

layed.” Id. § 706(1). The statutory duty imposed on the

Secretary with respect to the management of these lands

is mandatory, not discretionary, see 43 U.S.C. § 1782(c)

(“the Secretary shall continue to manage... ”), and BLM

does not suggest that review is precluded by statute or

that the agency’s conduct is committed to agency discre-

tion by law. See 5 U.S.C. §701(a).~ Where, as here,

* Although BLM repeatedly suggests that judicial review in this

case may interfere with its discretion in managing the public lands, it

. (Continued on following page)

en re

19

plaintiffs allege that the Secretary's conduct has breached

her statutory duty under FLPMA, the federal courts

plainly have subject matter jurisdiction to hear the claim.

BLM argues, however, that the APA does not grant the

courts authority to review failures by land management

agencies to act except in extremely narrow circumstances. As

an initial matter, BLM’s suggestion that land management

agencies deserve special exemption under the Act appears

simply self-serving. Apart from its exemption of “matters

relating to ... public property” from notice and comment

rulemaking procedures, 5 U.S.C. § 553(a)(2), the APA does

not treat land management agencies differently in any

respect from other federal agencies.” Given the importance

of judicial review to administrative law, this Court should be

has never claimed that management of these lands is committed to its

absolute discretion by law. Nor could it; the specific, non-discretionary

duty imposed by § 1782(c) of FLPMA, together with other provisions in

that detailed statute, preclude any such claim. Similarly, the broad

discretion exercised by agencies in enforcement, recognized by this

Court in Heckler v. Chaney, supra, is not at issue here. Indeed, BLM

does not rely upon Heckler in its argument. .

* BLM repeatedly invokes this Court’s decision in Lujan v.

National Wildlife Federation, 497 U.S. 871 (1990), for the proposition

that an agency's “day-to-day administration of its programs” cannot be

reviewed. See, e.g., Petitioners’ Brief at 15. BLM misreads Lujan,

however. In Lujan, the Court rejected an attempt by plaintiffs to

aggregate a large number of individual actions into a single reviewable

“program.” The Court found that the alleged “land withdrawal pro-

gram” was not an identifiable agency action that could receive “whole-

sale” review. Id. at 891. The Court did not, however, suggest that the

plaintiffs could not seek judicial review of the agency’s conduct in these

matters at all; to the contrary, it simply directed plaintiffs to bring their

complaints regarding the agency’s conduct in “case-by-case” challenges.

Id. at 894. The plaintiffs here have done so, raising <hallenges to BLM’s

management of particular lands.

20

wary of attempts by federal agencies to carve out for

themselves broad exemptions from judicial scrutiny.

More basically, however, BLM’s legal argument is

premised on a wishful misreading of the text of the APA, and

conflicts with clear Congressional intent to afford expansive

judicial review.” BLM argues, first, that the Act’s definition

of “agency action” must be read as limited to specific “dis-

crete products of a focused decision making process by the

agency,” such as rules, orders, licenses, sanctions and relief.

Petitioners’ Brief at 13. Next, BLM posits that the term

“failure to act” must mean a failure to take such formal

agency action. Based on this syllogism, BLM argues that the

relief available under § 706(1) and § 706(2) of the Act must

also be perfectly symmetrical: the only actions that may be

compelled under § 706(1), in BLM’s view, are discrete actions

that would be reviewable under § 706(2) if taken by an

agency. Finally, BLM overlays this argument with the

notion of finality, arguing that judicial review under either

* BLM relies for its view of Congressional intent almost exclu-

sively upon the views expressed by the Department of Justice to the

Congress as it considered the Act. See Petitioners’ Brief at 18-25

(discussing the 1941 report of the Attorney General’s Committee on

Administrative Procedure and the post-enactment Attorney General’s

Manual on the Administrative Procedure Act, while citing actual

statements of Congressional committees or Congressmen only twice —

once for the Senate Report’s description of the Attorney General's

Committee’s “contribution”). While this Court has given the Attorney

General’s Manual on the Administrative Procedure Act “some defer-

ence,” given the role played by the Department of Justice in the

legislative process, see, e.g., Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, 435 U.S. 519, 546 (1978), it cannot

supersede actual evidence of Congressional intent, such as the reports

of the Congressional committees who drafted the APA.

21

§ 706(1) or § 706(2) is limited to final, discrete agency

actions that have been taken or withheld.

BLM’s convoluted interpretation is contrary both to

the actual text of the Act and to the legislative history.

BLM’s first premise reads § 551(13)’s definition of “agency

action” as an exclusive listing of discrete formal acts,

effectively ignoring the word “includes.” As the statute’s

use of that word indicates, however, the definition of

“agency action” in § 551(13) is inclusive and exemplary,

not exclusive. See Standard Oil of Calif. v. Federal Trade

Comm’n, 596 F.2d 1381, 1384 (9th Cir. 1979) (§ 551(13) is

“Jlustrative rather than exclusive”), rev'd on other

grounds, 449 U.S. 232, 238.n.7 (1980) (agreeing with court

of appeals regarding the existence of agency action, but

finding it non-final). The term “agency action” was inten-

tionally defined broadly by Congress to “assure the com-

plete coverage of every form of agency power, proceeding,

action or inaction,” LEG. His. at 198 (S. Rep.), 255 (H.R.

Rep.), in keeping with Congress’s overarching resolve to

“afford a remedy for every legal wrong.” LEG. His. at 193

(S. Rep.), 251 (H.R. Rep.). As this Court has accordingly

recognized, the Act “is meant to cover comprehensively

every manner in which an agency may exercise its power.”

Whitman v. American Trucking Associations, Inc., 531 U.S.

457, 478 (2001) (emphasis added).

The phrase “failure to act,” moreover, is not limited, as

BLM suggests, to the failure to take a discrete formal

action like the issuance of a rule or order. BLM treats the

statutory phrase “failure to act” in § 551(13) as if it read,

instead, “failure to take such action.” In BLM’s view, the

statutory definition would thus read “agency action

includes the whole or a part of an agency rule, order,

license, sanction, relief, or the equivalent or denial thereof,

or the failure to take such action.” The actual text of this

provision does not link a “failure to act” to the exemplars

22

of affirmative agency action it lists, however, and the

structure of the provision does not support any inference

that it is so limited. If Congress had meant to define

“failure to act” narrowly as 2 “failure to take such action,”

it plainly could have done so, as it did by defining agency

action to include the listed examples and “the equivalent

or denial thereof.”

As discussed above, the phrase “failure to act” was added

separately in the Senate bill to the definition of “agency

action” used in other bills then under consideration. Given the

understanding, widely accepted by the time the APA was

enacted, that agency inaction can constitute an exercise of

agency power fully as much as agency action, Congress's

deliberate inclusion of the term “failure to act” within the

meaning of “agency action” must be read broadly to include

any form of agency default that injures persons holding

statutorily-protected interests. Congress in fact declined to

enact proposed bills that would have defined “agency action”

more narrowly, by omitting the term “failure to act” or by

restricting judicial review to final decisions rendered pursuant

to formal procedures. See supra, at 13-14. Indeed, one such

failed bill proposed virtually the exact approach that BLM

now wishes to read into § 551(13), permitting review only of

particular final actions and agency failures to take such final

actions. See LEG. His. at 154 (H.R. 1117) (restricting judicial

review to “final actions, rules, or orders, or those for which

there is no other adequate judicial remedy (including the

neglect, failure, or refusal of an agency to act upon any

application for a rule, order, permission, or the amendment

or modification thereof, within the time prescribed by law or

within a reasonable time) . . .”) (emphasis added). Congress's

decision instead to define reviewable agency action broadly

to include any “failure to act” must therefore be understood

as rejecting the narrow interpretation now offered by BLM.

23

Without BLM’s restrictive, and erroneous reading of

“agency action” and “failure to act,” the agency's argument

that the provisions of § 706(1) and (2) are narrow mirrors,

providing review only of discrete formal decisions taken or

withheld, falls of its own weight. Nothing in either provi-

sion, or in the Act’s legislative history, supports that view.

Section 706 defines the standard of review for the courts in

actions under the APA. It cannot be read as limiting or

otherwise governing the right to review conferred by § 702,

and is simply irrelevant to the issue whether judicial

review is available. The provisions of § 706(1) and (2) are

indeed complementary, but they reflect the different

functions of the courts when faced, respectively, with

inaction and action. Section 706(1) specifies the scope of

review for an agency’s “failure to act”; its reference to

“agency action unlawfully withheld or unreasonably

delayed” must be read as referring to that term, and it

provides specific authority for the courts to remedy such a

failure by compelling appropriate action to achieve com-

pliance with a statutory command, regardless of whether

such action takes the form of discrete, formal decisions.

Section 706(2), by contrast, sets the scope of review for

affirmative agency actions, authorizing the courts to “hold

unlawful and set aside” such affirmative acts when they

violate the applicable legal standard.

Finally, BLM’s invocation of the finality requirement is

simply misplaced. While the doctrine of finality applies to a

claim for judicial review of agency inaction, the text of the APA

does not support BLM’s reading of § 706(1) as affording the

courts authority to compel only discrete agency action that

would be final if taken. It is § 704 that limits judicial review

(unless otherwise provided by statute) to “final agency action.”

When “agency action” in that provision is read to embrace

“failure to act,” the plain meaning of § 704 is that the courts

24

may review any “final failure to act” (not, as BLM would have

it, any “failure to take final action”). This is the construction of

§§ 704 and 706(1) that the federal courts have long adopted

when faced with claims of unlawful inaction or unreasonable

delay on the part of a federal agency. As the court of appeals

explained in this case:

Once the agency’s delay in carrying out [a man-

datory duty] becomes unreasonable, or once the

established statutory deadline for carrying out

that duty lapses, the agency’s inaction under

these circumstances is, in essence, the same as if

the agency had issued a final order or rule de-

claring that it would not complete its legally re-

quired duty.

Pet. App. at 16a. See also, e.g., Coalition for Sustainable

Resources, Inc. v. United States Forest Service, 259 F.3d

1244, 1251 (10th Cir. 2001); Sierra Club v. Thomas, 828

F.2d 783, 793 (D.C. Cir. 1987) (“[I)f an agency is under an

unequivocal statutory duty to act, failure to do so consti-

tutes, in effect, an affirmative act that triggers ‘final

agency action’ review.”).”

The recognition by the courts that an agency’s failure

to act must at some point be deemed “final” is consistent

with this Court’s teaching in Abbott Laboratories that

finality is to be determined in a “pragmatic” ard “flexible”

manner. 387 U.S. at 149-50. Although an affirmative

agency action is not considered final unless it marks the

“consummation” of the agency’s decision making process,

™ See also Daniel P. Selmi, Jurisdiction to Review Agency Inaction

Under Federal Environmental Law, 72 IND. L.J. 65, 99-101 (1996)

(di . t ti ti ); I I . Ji li . ] - R . of

Administrative Inaction, supra, 83 COLUM. L. REV. at 652-55 (1983).

Se nel

25

Bennett v. Spear, 520 U.S. 154, 177-78 (1997), an agency's

failure to act may result as readily from neglect as from

deliberate decision. Requiring a deliberate decision not to

act before permitting judicial review would inappropri-

ately entangle the courts in searching for agency motives

on poorly-defined records. Indeed, requiring a demonstra-

ble decision not to act before permitting judicial review

would encourage agencies not to make such decisions, or

at least not to document them, in order to evade judicial

review. More broadly, it would preclude judicial review

altogether of agency inaction that is the product of neglect,

rather than defiance, no matter how egregiously it may

derogate from Congressional direction. Finally, requiring

such a decision before permitting judicial review squarely

collides with § 706(1)’s authorization to courts to compel

agency action “unreasonably delayed.” If that provision

means anything, it must mean that a failure to decide, if it

amounts to “unreasonable delay,” can be corrected by a

court. For these reasons, the courts have properly focused

on whether the agency’s failure to act is effectively final,

either because it violates a statutory deadline or because it

constitutes unreasonable delay.

The second element of finality, that an agency’s action

have concrete real-world impact, see Bennett v. Spear, supra,

at 178 (final action is “one by which rights or obligations

isave been determined, or from which legal consequences will

flow”) (internal quotes omitted), is also satisfied where an

agency's failure to act inflicts actual injury on statutorily-

protected interests, concretely affecting the legal rights of

parties holding such interests. Where an agency's failure

to adhere to a statutory mandate demonstrably injures

statutorily-protected interests, such as those of wilderness

users in this case, that failure must be deemed final.

26

B. BLM’s Interpretation of the APA Would Un-

dermine Core Principles of Administrative

Law, Creating a Loophole Permitting Agen-

cies to Escape Judicial Review and Estab-

lishing an Inappropriate Double-Standard

Favoring Regulated Entities Over Benefici-

aries of Statutory Mandates

BLM’s erroneous and restrictive interpretation of the

APA would undercut principles of administrative law that

are central to the notion of the rule of law. As amici have

shown, judicial review is a critical check on lawless agency

behavior, enforcing fidelity to statutory directives, deter-

ring improper influence by private parties over agency

regulatory processes, and fostering public faith in the

legitimacy of government. By carving out a broad and ill-

defined exemption for land management agency admini-

stration of statutory programs, BLM’s interpretation of the

Act would create, as the court of appeals noted, a “no-

man’s-land” of judicial review “in which a federal agency

could fflout] mandatory, non-discretionary duties simply

because it might be able to satisfy these duties through

some form of non-final action.” Pet. App. 18a n.10. BLM’s

response can only be termed imperious: persons injured by

such lawless conduct should, BLM submits, simply ask the

offending agency to correct its failure to act. The agency

may then, in its sole discretion, choose to respond to such

a request in a manner that “could” serve as the basis for

“any judicial review that may be available.” Petitioners’

Brief at 29; see also id. at 36. BLM acknowledges that an

agency would be under no legal duty even to respond to

such a petition. Petitioners’ Brief at 29. BLM and other

agencies can hardly be expected to miss the point that

they may escape judicial scrutiny altogether simply by

ignoring public complaints.

—_——

27

Moreover, by artificially constricting judicial review of

agency inaction, BLM’s position would re-establish a

double standard, obsolete in administrative law since the

New Deal era, favoring the interests of regulated parties

over the interests of beneficiaries of statutory programs.

As amici have shown, agency inaction poses particular

threats to the implementation of broad public policies and

to the alleviation of non-traditional harms recognized by

Congress. Precluding judicial review of an agency's failure

to implement a statutory mandate would leave the benefi-

ciaries of statutory programs without a judicial remedy for

agency default, and as amici have noted, without effective

political recourse. By contrast, under BLM’s theory,

persons directly regulated or restricted by an agency

would always have a judicial remedy: in the case at hand,

for example, off-road vehicle users would have the right to

challenge any final BLM action closing wilderness study

areas to vehicular use, while wilderness recreationists

could not similarly challenge the agency's failure to take

such steps even in the face of demonstrable degradation of

the wilderness values of such areas. Such a “one-way

ratchet” in favor of regulated parties would exacerbate the

risks of “agency capture,” since agencies could ignore

without risk the views of persons unable to invoke judicial

review. See discussion supra, at 11-12.

C. Recognition of the Court’s Authority to Re-

view an Agency’s Failure to Act That

Breaches a Statutory Duty Would Not Lead

to Impermissible Judicial Interference in

Agency Functions

BLM asserts that this Court must adopt its restrictive

position in order to avoid “improper intrusion by courts

“into agency activities.” Petitioners’ Brief at 25. BLM

28

invokes a landscape in which federal judges, acting under

the authority of § 706(1), micro-manage every aspect of an

agency’s conduct, instructing agencies in “how to act”

rather than compelling agencies to act.

BLM’s concern about the scope of potential remedies

the courts might impose is unduly hyperbolic. In fact, the

federal courts have extensive experience in adjudicating

claims of agency action unlawfully withheld or unreasona-

bly delayed, and have shown great sensitivity to agency

autonomy in crafting remedies for such claims. The Court

of Appeals for the D.C. Circuit, for example, the court with

the most extensive involvement with administrative

litigation, uses a “rule of reason” in determining when an

agency action has been unreasonably delayed; the factors

it weighs include the effect that expediting delayed action

might have on agency activities of a higher or competing

priority, as well as the nature and extent of interests

prejudiced by the delay. See, e.g., Telecommunications

Research and Action Center v. FCC, 750 F.2d 70, 80 (D.C.

Cir. 1984) (“TRAC”). Other courts have shown similar

sensitivity to agency functions in reviewing claims of

agency failures to act. See, e.g., NAA.C.P. v. Secretary of

Housing and Urban Development, 817 F.2d 149, 159-60

(1st Cir. 1987) (Breyer, J.) (“We do not see any reason why

the court cannot effectively ensure HUD’s future responsi-

ble exercise of discretion while at the same time preserv-

ing for the agency its discretionary options.... In

formulating its remedy, of course, the district court may, as

it has already done, seek the advice and participation of

HUD.”); Estate of Smith v. Heckler, 747 F.2d 583, 591

(10th Cir. 1984) (noting that the “court is not a ‘super

agency and cannot control the specifics of how the Secre-

tary satisfies [a statutory] duty”).

ae

—

29

Contrary to BLM’s fears, the remedies entered by the

courts in such cases have rarely gone beyond determining

a schedule for completion of an agency's duty, see, e.g., MCI

Telecommunications Corp. v. FCC, 627 F.2d 322 (D.C. Cir.

1980); Public Citizen Health Research Group v. Chao, 314

F.3d 143 (3d Cir. 2002), or retaining jurisdiction to super-

vise the agency's progress. See, e.g., Air Line Pilots Ass'n v.

CAB, 750 F.2d 81, 87 (D.C. Cir. 1984). The court of appeals

in the present case noted that “compelling agency action is

distinct from ordering a particular outcome,” Pet. App.

lla, and made clear that it was merely holding that

plaintiffs’ claims should be heard. Pet. App. 3a. Just as the

equitable discretion of the federal courts can protect the

legitimate sovereign interests of state officials subject to a

federal consent decree, see Frew v. Hawkins, 124 S.Ct. 899,

905-06 (2004), so too the remedial discretion of the courts

can prevent undue interference with federal agency

functions.

In any event, BLM’s concerns about the breadth of

hypothetical remedies do not speak to whether federal

courts possess subject matter jurisdiction under the APA to

hear claims of agency failure to act. As the court of appeals

noted, Pet. App. 14a, BLM confuses its claim of discretion

over how to implement a statutory mandate with the

actual question before this Court: whether the agency has

discretion to disobey a mandatory statutory command

altogether. To accord with the basic principles of the rule

of law, that proposition must be rejected.

30

CONCLUSION

For these reasons, amici professors of administrative

and/or environmental law urge this Court to affirm the

decision of the court of appeals in this case.

Respectfully submitted,

WILLIAM D. ARAIZA

LOYOLA LAW SCHOOL,

Los ANGELES

919 Albany Street

Los Angeles, CA 90015-1211

(213) 736-8167

ROBERT G. DREHER

GEORGETOWN ENVIRONMENTAL

LAW & POLicy INSTITUTE

GEORGETOWN UNIVERSITY

. LAW CENTER

600 New Jersey Ave., N.W.

Washington, D.C. 20001

(202) 662-9364

Counsel for Amici

February 17, 2004

la

APPENDIX

Description of Amici

Robert W. Adler is the James I. Farr Chair and Professor

of Law at the Wallace Stegner Center for Land, Resources

and the Environment, S.J. Quinney College of Law, Uni-

versity of Utah. Mr. Adler has practiced and taught envi-

ronmental and natural resources law for 25 years, and has

published extensively in the field.

Michael D. Axline is Professor of Law, Director of Clinical

Programs and Co-Director of the Environmental Law

Clinic at the University of Oregon School of Law. He

teaches administrative law and civil procedure, and is the

author of ENVIRONMENTAL CITIZEN SuIts (1993).

Robert Benson is professor of law at Loyola Law School,

Los Angeles, where for a decade he taught administrative

law and now teaches international environmental law.

Ashutosh Bhagwat is Professor of Law and Associate

Academic Dean at the University of California, Hastings

College of the Law. He writes and teaches in the areas of

constitutional law and economic regulation.

John E. Bonine is Professor of Law at the University of

Oregon School of Law, where he teaches administrative

law, environmental law and constitutional law. He co-

founded the world’s first environmental law clinic, the

student-run Public Interest Environmental Law Confer-

ence, and the Environmental Law Alliance Worldwide.

Rebecca Bratspies is Visiting Associate Professor of Law at

Michigan State University-DCL College of Law. She is

Associate Professor of Law at the University of Idaho

2a

College of Law. She teaches property, environmental law,

and administrative law.

Sande L. Buhai is a clinical professor at Loyola Law

School in Los Angeles. Professor Buhai has served as

director of the Public Interest Department since 1994.

Formerly Deputy Attorney General of the State of Califor-

nia, from 1984-1989, Ms. Buhai also served as Executive

Director of the Western Law Center for Disability Rights,

from 1989-1994.

William W. Buzbee is Professor of Law at Emory Univer-

sity School of Law, where he teaches environmental law,

administrative law, property, land use, legal methods, and

seminars on advanced environmental law issues, urban

environmental law, and regulatory reform.

Debra L. Donahue has been the Winston S. Howard

Professor of Law at the University of Wyoming College of

Law. Professor Donahue teaches public lands law, water

pollution and hazardous waste law, land use law, and

Indian law; she also formerly taught administrative law.

Professor Donahue is the author of The Western Range

Revisited (U. of Okla. Press 1999).

Cynthia Drew is Associate Professor of Law at the Univer-

sity of Miami School of Law, where she teaches natural

resources and energy law and administrative law.

David M. Driesen is an Associate Professor at Syracuse

University College of Law, teaching environmental and

constitutional law.

Cynthia Farina is Professor of Law and Associate Dean of

the Faculty at Cornell University, where she teaches

Administrative Law, Federal Courts and a seminar in

Separation of Powers. With Peter Strauss and Todd

3a

Rakoff, she is co-author of GELLHORN & BYSE’S ADMINIS-

TRATIVE LAW, and she was the co-reporter responsible for

the standing section of the ABA Project on the Administra-

tive Procedure Act.

Joseph Feller is a Professor of Law at Arizona State

University where he teaches Natural Resources Law,

Public Land Law, Water Law, and Property. He is the

author of numerous articles on public land law, environ-

mental law, and water law published in law reviews and

scientific journals.

Roger W. Findley is the Fritz B. Burns Chair of Real

Property at Loyola Law School in Los Angeles. Professor

Findley coauthored CASES & MATERIALS ON ENVIRON-

MENTAL LAW (6th ed. 2003), and ENVIRONMENTAL LAW IN A

NUTSHELL (5th ed. 2000).

Cyril Fox is Professor of Law at the University of Pitts-

burgh School of Law, where he teaches environmental and

natural resources law.

Lisa Heinzerling is a Professor of Law at the Georgetown

University Law Center, where she specializes in environ-

mental law and regulatory policy.

Oliver Houck is a Professor of Law at Tulane University

Law School, where he directs the environmental law

program. He served as an Assistant United States Attor-

ney and as General Counsel to the National Wildlife

Federation before joining the Tulane faculty in 1981. He

has published widely on environmental, administrative

and constitutional law.

William S. Jordan is McDowell Professor of Law at the

University of Akron School of Law, where he teaches

administrative law, environmental law, and property.

4a

Robert B. Keiter is Wallace Stegner Professor of Law and

Director of the Wallace Stegner Center for Land, Re-

sources and the Environment at the University of Utah’s

S.J. Quinney College of Law.

Charles Koch is Dudley Warner Woodbridge Professor of

Law at the Marshall-Wythe School of Law at the College of

William & Mary. He is the author of ADMINISTRATIVE LAW

& PRACTICE (2nd ed.) and ADMINISTRATIVE LAW: CASES AND

MATERIALS (4th ed.). He has served as Chair of the Admin-

istrative Law Section of the Association of American Law

Schools, as Editor-in-Chief of the ADMINISTRATIVE LAW

REVIEW, and as a cousultant to the Administrative Confer-

ence of the United States.

Kenneth R. Kreiling is Professor of Law at Vermont Law

School, where he teaches and conducts research regarding

federal jurisdiction and judicial review. He has served as

reporter for the Advisory Committee to United States

District Court for Vermont and is a peer reviewer for

publications of the Federal Judicial Center dealing with

complex litigation and scientific/expert evidence. He serves

as reporter for Committees of the Vermont Supreme Court.

Jeffrey S. Lubbers is a fellow in law and government at

the American University’s Washington College of Law. Mr.

Lubbers teaches administrative law and environmental

law. Before joining American University in 1996, he was

the research director for the former Administrative Con-

ference of the United States.

Patricia Ross McCubbin is Assistant Professor of Law at

Southern Illinois University School of Law. She teaches

environmental law, advanced environmental litigation and

environmental business transactions. Prior to teaching,

-—- oc «<—“aih-<. @ -a« <> -<ae <a -<a@

5a

she was an attorney with the Environmental Defense

Section of the U.S. Department of Justice.

Thomas O. McGarity holds the W. James Kronzer Chair in

Trial and Appellate Advocacy at the University of Texas

School of Law, where he has taught Environmental Law,

Administrative Law and Torts since 1980. Prior to joining

the faculty at the University of Texas, he taught at the

University of Kansas School of Law.

Kenneth M. Murchison is the James E. & Betty M. Phil-

lips Professor at the Louisiana State University Law

Center. He has taught environmental law and constitu-

tional law for 27 years.

Richard Ottinger, Dean Emeritus at Pace Law School, was

Dean there from 1994-1999. He is a former Member of

Congress from Westchester County, New York. He was a

founding staff member of the U.S., Peace Corps and its

Director of Programs for the West Coast of South America.

Patrick Parenteau is Professor of Law and Director of the

Environmental and Natural Resources Law Clinic at

Vermont Law School. He previously served as Vice Presi-

dent for Conservation with the National Wildlife Federa-

tion, New England Regional Counsel for EPA, and

Commissioner of the Vermont Department of Environ-

mental Conservation.

Zygmunt J. B. Plater, Professor, Boston College Law

School, teaches and writes in the fields of Administrative

Law, Property and Land Use law, and Environmental Law.

He has litigated and consulted on a number of important

cases involving administrative and environmental law,

and has taught on seven law faculties in this country and

abroad.

6a

Ann Powers is a professor with Pace Law School’s Center

for Environmental Legal Studies where her major areas of

teaching and scholarship are land-based sources of pollu-

tion, water quality, wetlands protection, and coastal

issues. Professor Powers joined the Pace faculty in 1995,

after ten years as Vice President and General Counsel of

the Chesapeake Bay Foundation.

Arnold W. Reitze, Jr. is the J.B. and Maurice C. Shapiro

Professor of Environmental Law and Director of the

environmental law program at the George Washington

University Law School, where he has taught since 1970.

Irma S. Russell is a professor of law at the University of

Memphis School of Law who specializes in natural re-

sources law and contracts. Her legal publications include

numerous articles on environmental law, including Issues

of Legal Ethics in the Practice of Environmental Law

Daniel P. Selmi is a Professor of Law at Loyola Law

School, Los Angeles, where he has taught administrative

law, environmental law, land use law and torts for twenty

years. Prior to joining the faculty at Loyola Law School, he

served as a Deputy Attorney General for the State of

California.

Gregory Sergienko is Professor of Law and Associate Dean

of Academic Affairs at Western State University College of

Law. He has taught at Chicago, Richmond, William &

Mary, Maryland, Wayne State, and Southern Illinois, and

his teaching includes basic and advanced environmental

law and policy courses.

Karin P. Sheldon is Professor of Law, Associate Dean for

the Environmental Law Program, and Director of the

Environmental Law Center at Vermont Law School.

SE Re ee ee ee a

7a

Professor Sheldon teaches and writes in the areas of

federal natural resources law, water law, and environ-

mental law and policy. Prior to joining the faculty of

Vermont Law School, she was President of The Wilderness

Society, Staff Attorney with the Sierra Club Legal Defense

Fund (now EarthJustice), and a partner in two public

interest law firms.

Amy Sinden is Assistant Professor of Law at Temple

University Beasley School of Law, where she teaches

environmental law, property and civil procedure. Prior to

joining the faculty of Temple University, she served as

senior counsel for Citizens for Pennsylvania’s Future.

Mark Squillace is Professor of Law at the University of

Toledo College of Law, where he teaches administrative law,

environmental law, natural resources law, and water rights.

Before joining the faculty at the University of Toledo he

taught at the University of Wyoming College of Law.

John-Mark Stensvaag is the Charlotte and Frederick

Hubbell Professor of Environmental and Natural Re-

sources Law at the University of Iowa College of Law. He

is the author of two multi-volume treatises and a casebook

in environmental law, and has taught environmental! law

courses for twenty-five years.

~

Sandra B. Zellmer is visiting Professor of Law at the

University of Nebraska College of Law, where she teaches

and writes about natural resources, water conservation

and use, environmental law, American Indian law, and

property. She has been a member of the faculty of the

University of Toledo College of Law since 1998.