# Amicus Curiae Brief — Norton v. Southern Utah Wilderness Alliance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0696%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2004 - **Citation:** 542 U.S. 55 ## Text 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 -