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; GREAT OLD BROADS FOR WILDERNESS, Plaintiffs - Appellees,
MARCILYNN BURKE, in her official capacity as Assistant Secretary for Lands and Minerals Management of the United States Department of the Interior; UNITED STATES BUREAU OF LAND MANGAGEMENT; UNITED STATES DEPARTMENT OF INTERIOR, Defendants - Appellees, SAN JUAN COUNTY; KANE COUNTY, Intervenors Defendants - Appellants, and STATE OF UTAH; CARBON COUNTY; TWILIGHT RESOURCES; PAR 5 EXPLORATION, LLC; UTAH SCHOOL AND INSTITUTIONAL TRUST LANDS ADMINISTRATION; UINTAH COUNTY, Utah; DUCHESNE COUNTY, Utah; DAGGETT COUNTY, Utah; TRAILS PRESERVATION ALLIANCE, INC.; EMERY COUNTY; GRAND COUNTY; XTO ENERGY, Intervenors Defendants. 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; GREAT OLD BROADS FOR WILDERNESS, Plaintiffs - Appellees,
MARCILYNN BURKE, in her official capacity as Assistant Secretary for Lands and Minerals Management of the United States Department of the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT; UNITED STATES DEPARTMENT OF INTERIOR, Defendants - Appellees, SAN JUAN COUNTY; EOG RESOURCES, INC.; KANE COUNTY; TWILIGHT RESOURCES; PAR 5 EXPLORATION, LLC; UTAH SCHOOL AND INSTITUTIONAL TRUST LANDS ADMINISTRATION; XTO ENERGY;BADLANDS ENERGY; CRESCENT POINT ENERGY U.S. CORP., Intervenors Defendants, STATE OF UTAH; CARBON COUNTY; UINTAH COUNTY, Utah; DUCHESNE COUNTY, Utah; DAGGETT COUNTY, Utah; EMERY COUNTY; GRAND COUNTY, Intervenors Defendants - Appellants, and TRAILS PRESERVATION ALLIANCE, INC.; BLUE RIBBON COALITION, INC.; COLORADO OFF-HIGHWAY VEHICLE COALITION, Intervenors Defendants - Appellees.
Appeals from the United States District Court for the
District of Utah (D.C. No. 2:12-CV-00257-DAK)
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.
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.
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.
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.
BRISCOE, BALDOCK, and EID, Circuit Judges.
BRISCOE, CIRCUIT JUDGE.
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.
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.
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.
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 ...