Bush admin - " the public doesn't have the right to sue over land decisions on public land"

Here is my favorite quote:

"The case raises the question of whether the public can sue a
department of the
federal government for failing to fully implement a congressional
mandate. The
Bush administration maintains that an agency's daily activities — such
as
managing federal land — cannot be challenged in court."





Article Published: Tuesday, November 04, 2003
Court takes wilderness off-road case

http://www.denverpost.com/Stor....html


A U.S. Supreme Court decision Monday to review a Utah case could put a
chill on the public's ability to force the government to protect
wilderness, according to Colorado environmental leaders.

The 10th U.S. Circuit Court of Appeals in Denver ruled last year that
the Bureau of Land Management must protect from damage by off-road
vehicles five areas under consideration for wilderness protections.

The Bush administration appealed on the grounds that the public should
not be able to sue a federal agency over how it performs its
day-to-day role. U.S. Solicitor General Theodore Olson argued in his
appeal that the courts should not "entertain challenges to anything
and everything that an agency may do, or fail to do, in the conduct of
its business."


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Jim Angell, a lawyer with the Denver regional office of Earthjustice
and the lead attorney in the case, said Bush is, in effect, telling
the public to butt out, and not just when it comes to off-road
vehicles.

"The administration is not interested in having the public be able to
enforce environmental laws, or any other laws," when it comes to
government agencies, he said, "and this is a way to close the
courthouse doors to the public."

Suzanne Jones, the Denver-based regional director for the Wilderness
Society, said the administration's move is consistent with its
position on wilderness.

In September, the administration issued a new policy ordering the
Bureau of Land Management to give equal consideration to the
commercial value of public land before setting it aside as protected
wilderness.

That decision could open up about 600,000 acres in Colorado for
all-terrain vehicles, oil and gas drilling, grazing and other uses.

Jones said Colorado already has many wilderness areas that have been
scarred by dirt bikes and other off-road vehicles, including public
land near Palisades, Brown's Canyon near Salida and Little Bookcliff
near Grand Junction.

The Blue Ribbon Coalition, a Western pro-land-use group, and other
organizations had also asked the court to reconsider the 10th Circuit
ruling, and will likely support the government's argument.

Paul Turcke, an attorney for the coalition, said the
environmentalists' argument would enable groups to sue the government
if they don't like an agency's decision, regardless of the rationale
behind it.

The Associated Press contributed to this report



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High court case could impact parks

By Michael Kirkland
UPI Legal Affairs Correspondent

WASHINGTON, Nov. 3 (UPI) -- The Supreme Court agreed Monday to hear
argument
this term in the ongoing fight over the increased use of snowmobiles
and other
off-road vehicles in national parks, and whether the federal
government is doing
enough under the law to restrict them.

The case accepted by the justices in a one-line order deals with a
highly
technical aspect of a suit against the Interior Department, but might
have a
significant impact on the larger dispute over how the national parks
are used.

The lawsuit was filed in Utah in 1999 by a coalition of environmental
groups.
The coalition is headed by the Southern Utah Wilderness Alliance, but
includes
the Sierra Club as well as other organizations.

The suit alleged that Interior's Bureau of Land Management was
violating the
Federal Land Policy and Management Act and the National Environmental
Policy Act
"by not properly managing off-road vehicles and/or highway vehicle ...
use on
federal lands that had been classified by the BLM as Wilderness Study
Areas
(WSAs) or as having 'wilderness qualities.'"

A group of off-road vehicle users successfully asked the court to let
it join
the case on the government's side. The group included several
organizations
usually defined as "recreationists," who say the national parks should
be used
to their fullest.

A federal judge rejected the coalition's arguments and dismissed the
case for
lack of jurisdiction. The judge reasoned that as long as an agency was
taking
some action toward fulfilling mandatory duties, the agency could not
be
compelled to do more under the Administrative Procedure Act.

However, a federal appeals court panel reversed the decision, saying
that the
judge made a mistake "in dismissing this case for lack of subject
matter
jurisdiction and in concluding, at the motion to dismiss stage, that
(the
environmental coalition) failed to state a claim that BLM had a duty
to consider
(a supplemental environmental impact statement) based on new
circumstances."

The panel majority said it was not ruling on the merits of the case,
which still
had to be argued at the trial court level.

The Justice Department then filed a petition with the Supreme Court on
behalf of
the Interior Department, asking for review of the appeals court
decision.

The Administrative Procedure Act "does not provide a vehicle for
judicial review
of an agency's ongoing programmatic activity," the department told the
justices
in the petition.

In other words, the "APA does not authorize the federal courts to
entertain
challenges to anything or everything that an agency may do, or fail to
do, in
the conduct of its business," the petition said.

The law limits the intervention of the federal courts "to those
instances in
which the agency has taken, or has a duty to take, a discrete, clearly
identified and definitive action that carries legal consequences."

In unsuccessfully opposing Supreme Court review, the environmental
coalition
argued that the case is still in a "procedure posture" -- the lower
courts were
just working out the preliminary process under which a trial could
take place.
Such a case makes for "an inappropriate candidate for Supreme Court
review," the
coalition's brief said.

The environmental groups were not raising procedural issues, the
coalition
argued, and those issues were not really part of the case. Instead,
the
coalition "challenged BLM's failure to take specific action or meet a
specific
legal requirement in a specific area."

Though the case is not yet scheduled, the justices should hear
argument in the
dispute sometime this spring.

(Nos. 03-101 and 02-1703, Norton et al vs. SUWA et al.)

All site contents copyright c 2003 News World Communications, Inc.

- - - - -


Then from the Environmental News Network, see:

http://www.enn.com/news/2003-11-04/s_10058.asp

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Supreme Court decision to hear wilderness case a blow to
environmentalists

Tuesday, November 04, 2003
By Robert Gehrke, Associated Press
WASHINGTON — Environmental groups suing to keep off-road vehicles off
pristine
Western lands were dealt a setback Monday as the Supreme Court agreed
to
consider the government's argument that the case is invalid. The
court's
decision to hear the case jeopardizes an appeals court ruling
favorable to the
environmental groups.

"This is the latest step in the administration's plan to dismantle
public lands
protections and the protection of Americas most stunning and
spectacular
landscapes," said Steve Bloch, attorney for the Southern Utah
Wilderness
Alliance (SUWA).

The case raises the question of whether the public can sue a
department of the
federal government for failing to fully implement a congressional
mandate. The
Bush administration maintains that an agency's daily activities — such
as
managing federal land — cannot be challenged in court.

The law does not allow courts to "entertain challenges to anything and
everything that an agency may do, or fail to do, in the conduct of its
business," Solicitor General Theodore Olson told justices in a filing.
The case
is expected to go to the justices next spring.

Environmental groups already suffered a setback this year when
Interior
Secretary Gale Norton struck a deal with Utah Gov. Mike Leavitt to
discontinue
protections for 2.6 million acres of potential wilderness in Utah and
more land
scattered through the West. Next month, the BLM is scheduled to begin
leasing
the Utah land for oil and gas drilling.

"They're coming at it from both sides," said Earthjustice attorney Jim
Angell.

In 1999, SUWA and other environmental groups sued the Interior
Department,
claiming it had failed to protect five areas containing steep redrock
slot
canyons and sandstone buttes and plateaus that were being studied for
wilderness
designation: Parunuweap Canyon, Moquith Mountain, Sids Mountain,
Behind the
Rocks, and Indian Creek. The suit said off-road vehicles were damaging
the
areas, even though Congress had directed the department to protect the
wilderness.

The 10th Circuit Court of Appeals ruled the department could be sued
for
allowing damage to the lands. The 9th U.S. Circuit Court of Appeals in
San
Francisco came to a similar conclusion in a Montana case.

The Blue Ribbon Coalition, a Western pro-land-use group, and other
organizations
had also asked the court to reconsider the 10th Circuit ruling and
will likely
support the government's argument.

Paul Turcke, an attorney for the coalition, said the
environmentalists' argument
would enable group to sue the government if they don't like an
agency's
decision, regardless of the rationale behind it.

Angell said the case could have implications beyond wilderness. If the
court
strikes down the 10th Circuit ruling, citizens could not sue the
government for
failing to comply with congressionally mandated housing programs or
any other
general requirement by Congress.

The case is Norton v. Southern Utah Wilderness Alliance, 03-101.

Source: Associated Press


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