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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." Advertisement 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 ------------ 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 - - - - - 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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