Southern Utah Wilderness Alliance v. Burke

          Appeals from the United States District Court for the District of Utah (D.C. No. 2:12-CV-00257-DAK)

          David Halverson (Sean D. Reyes, Utah Attorney General, Anthony L. Rampton and Kathy A.F. Davis, on the briefs), Office of the Attorney General for the State of Utah, Salt Lake City, Utah, appearing for Appellants State of Utah and Carbon, Daggett, Duchesne, Emery, Grand, and Uintah Counties.

          Shawn T. Welch (Ashley A. Peck, with him on the briefs), Holland & Hart LLP, Salt Lake City, Utah, appearing for Appellants San Juan and Kane Counties.

          Thekla Hansen-Young, Attorney, Environment & Natural Resources Division, United States Department of Justice, Washington, DC (Jeffrey H. Wood, Acting Assistant Attorney General and Eric Grant, Deputy Assistant Attorney General, United States Department of Justice, Washington, DC; Andrew C. Mergen, Robert J. Lundman, and Luther L. Hajek, Attorneys, Environment & Natural Resources Division, United States Department of Justice, Washington, DC; and Veronica Larvie, Office of the Solicitor, United States Department of the Interior, Washington, DC, with her on the brief), appearing for Appellees United States Bureau of Land Management.

          Robin Cooley, Earthjustice, Denver, Colorado (Stephen Bloch, Southern Utah Wilderness Alliance, Salt Lake City, Utah, with her on the brief), appearing for Appellees Southern Utah Wilderness Alliance, Natural Resources Defense Council, Wilderness Society, National Parks Conservation Association, Grand Canyon Trust, Sierra Club, National Trust for Historic Preservation, Rocky Mountain Wild, Utah Rivers Council, and Great Old Broads for Wilderness.

          Before BRISCOE, BALDOCK, and EID, Circuit Judges.

          BRISCOE, CIRCUIT JUDGE.

         These appeals were filed following district court approval of a settlement agreement. The Settlement Agreement sought to end a longstanding, complex dispute dating from 2008. In 2008, environmental groups led by the Southern Utah Wilderness Alliance (collectively, "SUWA") challenged six resource management plans ("RMPs") and associated travel management plans ("TMPs") adopted by the United States Bureau of Land Management ("BLM"). See App. 00032-76. Six other parties intervened as respondents in the district court, including the State of Utah and several counties in Utah (collectively, "Utah"). When BLM, SUWA, and multiple intervenors entered into a settlement and sought to dismiss the case in January 2017, Utah challenged the settlement. Utah contends, among other arguments, that the Settlement Agreement illegally codified interpretative BLM guidance into substantive rules, impermissibly binds the BLM to a past Administration's policies, infringes valid federal land rights (known as "R.S. 2477 rights"), and violates a prior BLM settlement. The district court disagreed, and approved the Settlement Agreement. App. 01477-78.

         Utah advances the same arguments on appeal and asks this court to reverse the district court because the Settlement Agreement is unlawful and against the public interest. SUWA asserts that this court lacks subject matter jurisdiction over Utah's claims. We agree with SUWA, and dismiss for lack of subject matter jurisdiction.

         I

         Central to this dispute is whether the BLM can simultaneously comply with all of the following: the Settlement Agreement; the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701-1787; a prior BLM settlement (the "Wilderness Settlement"); currently pending litigation (the "Wildlands Litigation"); and the Administrative Procedure Act ("APA"). Utah contends that BLM cannot, and therefore the Settlement Agreement is unlawful and against public policy.

         We look first to the Settlement Agreement. See App. 01095-129. Section A lays out the general provisions of the Settlement Agreement. Within Section A, Paragraph 12 states that "[a]ny subsequent modifications, supplements, or amendments to this Settlement Agreement must be in writing, and must be signed and executed by or on behalf of the affected parties, or their successors in interest, as necessary." Id. at 01100. Section B details more specific requirements on the action that the BLM will take under the Settlement Agreement. Paragraph 13 provides for deadlines by which BLM will issue five new TMPs for five specific travel management areas. Id. at 01100-01. Paragraph 15 details the process by which BLM will prepare the TMPs. In its entirety, Paragraph 15 reads as follows:

Applicable law and agency guidance. BLM will prepare the new TMPs for each of the TMAs identified in paragraph 13 pursuant to applicable statutes, regulations, BLM-Utah Instruction Memorandum No. 2012-066 ("BLM-Utah IM 2012-066"), and the terms identified in paragraphs 16-24 of the Settlement Agreement. In addition to BLM-Utah IM 2012-066, relevant existing guidance includes, but is not limited to: BLM-Utah Guidance for the Lands with Wilderness Characteristics Resource, Instruction Memorandum No. UT 2016-027 (September 30, 2016); BLM National Environmental Policy Act Handbook H-1790-1 (January 2008); BLM-Utah Handbook 8110, Guidelines for Identifying Cultural Resources (2002); BLM Handbook H-8342, Travel and Transportation (March 16, 2012); BLM Manual 1613, Areas of Critical Environmental Concern (September 29, 1988); BLM Manual 1626, Travel and Transportation (July 14, 2011); BLM Manual 6320, Considering Lands with Wilderness Characteristics in BLM Land Use Planning (March 15, 2012); BLM Manual 6330, Management of BLM Wilderness Study Areas (July 13, 2012), 6340, Management of BLM Wilderness (July 13, 2012); and BLM Manual 8110, Identifying and Evaluating Cultural Resources on Public Lands (December 3, 2004). Nothing in the Settlement Agreement makes binding the aforementioned guidance. Nothing in this Settlement Agreement shall be construed as limiting BLM's discretion to promulgate new manuals, handbooks, or instruction memoranda consistent with relevant law and regulations. The parties may agree to modify the Settlement Agreement to reflect updated regulations or guidance, consistent with paragraph 12.

App. 01101-1102. Utah contends that Paragraph 15 elevates certain agency guidance to the level of substantive rules in violation of the APA, and also provides SUWA with veto power over future BLM guidance and substantive rulemaking that could apply to the ...