Snowmobile Alliance of Western States opinion on TWS v. Gale A. Norton ruling (05-5032)

Sometimes a win for the government, can actually be a good thing for the people of the United States of America, which I believe to be the case in the recent decision by the US Court of appeals in The Wilderness Society v. Gale A. Norton (05-5032).

Although I find myself on the opposite side of the fence on many of the legal cases involving our federal government, I rarely ever find myself on the same side of the fence with the overly litigious extreme environmental groups, which holds true in this particular case.

For those that are not familiar with this case, I have included below a short background statement from the ruling. I would recommend you read the entire 20 page ruling (see link below, as it contains some rather interesting language.

On January 15, 2003, TWS filed suit against Gale Norton in her official capacity as Secretary of the Interior and Fran Mainella in her official capacity as Director of NPS. Specifically, TWS “allege[d] a widespread disregard by NPS of its statutory and regulatory duties to take specific actions to review and protect wilderness-quality lands in the National Park System, in violation of the Wilderness Act, 16 U.S.C. §§ 1131- 36, the National Park Service Organic Act, 16 U.S.C. §§ 1-18f-3, National Park Service Policies and Directives, and the [Administrative Procedure Act].” Wilderness Soc’y v. Norton, CA No. 03-64, 2005 U.S. Dist. LEXIS 18734, at *2 (D.D.C. Jan. 10, 2005) (emphases omitted).

http://caselaw.lp.findlaw.com/data2/circs/dc/055032a.pdf

Some of this ruling was a little difficult for me to follow, so I asked one of our Snowmobile Alliance of Western States Directors and Utah attorney, Steven B. Smith, to provide me with a summary of how he thinks this ruling will affect recreationists such as snowmobilers. Below is Steve’s very thorough summary. Thanks Steve.

Dave Hurwitz

Snowmobile Alliance of Western States

There appear to be two real reasons why the Court of Appeals agreed with the trial court that most of TWS' claims should be dismissed.

ISSUE # 1–STANDING

The first one that is dealt with most extensively is the "lack of standing." Article III of the U.S. Constitution limits the jurisdiction of Federal Courts to "real cases and controversies that CAN BE resolved by legal action." Several of the claims being pursued by TWS lacked standing because they do not qualify as "real cases or controversies" OR because even a favorable decision on those claims will not provide TWS with the relief it is seeking. [This is dealt with on pp 6-15 of the decision with several of the specific complaints being addressed]

For a case or controversy to exist you need the following:

• The party filing the complaint must have suffered an "injury in fact" or some invasion or violation of a legally protected interest that is actual or imminent. A conjectural or hypothetical injury will not be enough.
• There must be a logical and real connection between the injury AND the conduct that is being complained about. In other words.....the conduct being complained of must be the cause of the injury being complained of. If the injury is the result of or caused by something other than the defendant’s conduct, the required causal relationship does not exist and there is not standing.
• A likelihood that a favorable decision will prevent or redress the injury. If a favorable decision will not provide relief from the injury, then there is no standing.

In other words, the complaining party must have been injured by the defendant’s conduct and the court must be able to provide a remedy, Otherwise there will be a lack of standing.

ISSUE # 2–CLAIMS BASED UPON NPS' ALLGED FAILURE TO COMPLY WITH ITS OWN MANAGEMENT POLICIES

The court did find that some of TWS’s claims had standing. NEVERTHELESS, Those claims being asserted by TWS' lawsuit sought to force the NPS to comply with its own Management Policies that TWS claimed it was not following. [See pp. 15-20 of the Decision]. The Appellate Court, however, held that NPS' Management Policies create guidelines and instructions for Park Managers rather than RULES OR REGULATIONS that the NPS can be forced by outsiders to follow. Additionally, the court said that those Management Policies did not modify or create any legal rights and cannot, therefore, provide a foundation for claims.

The remainder of the decision dealt with the specific and various claims and complaints being pursued by TWS. The fact that this decision was issued by the US Court of Appeals for the District of Columbia is a big deal. A request for a review of the decision by the entire DC Appellate Court or a request for the US Supreme Court to review the appellate court's decision are the only real options TWS has to try and get this decision reversed.  While this decision is ONLY binding on the trial courts within the District of Columbia it could easily be followed by other Federal Courts, including those hearing other similar types of claims, like those being filed Earthjustice and the Southern Utah Wilderness Alliance against the BLM. See http://www.earthjustice.org/urgent/display.html?ID=120

Also, and perhaps even more importantly, the litigious environmentalists have regularly relied upon the liberal eastern courts out of DC to file their complaints. The Federal Trial Courts in the District of Columbia now HAVE TO follow this decision.

IN CONCLUSION

This is a very big win and is positive overall.  It takes several weapons out of the environmentalists’ legal arsenal that they have regularly relied upon.  They may even think twice about trying to appeal this to the U.S. Supreme Court in order to avoid a decision by that Court to allow the decision to stand.  Nevertheless, it could still be a double edged sword, used to prevent access groups such as the Blue Ribbon Coalition, SAWS, or other shared access groups from basing any arguments/claims on potential/speculative harm (what might happen if the FS doesn't change its mind about something) or on alleged violations of internal policies or procedures.

There are a couple of ways that I see this decision could be applied in real life:

One, it basically prevents anyone from prevailing in a lawsuit (or claim within a lawsuit) that is based solely upon internal management policies of the NSP (in this case----or USFS in other cases).  This decision does not eliminate any claims that allege the NPS, BLM or FS is not doing what Congress has required it to do by any federal statutes, including the following:

• The Organic Act ("OA")
• Federal Land Policy & Management Act (FLPMA)
• Forest and Rangeland Renewable Resources Planning Act ("FRRRP")
• National Forest Management Act ("NFMA")
• Multiple Use-Sustained Yield Act ("MUSYA") or
• The Administrative Procedures Act ("APA")

Secondly, it should prevent groups from pursuing claims based upon injuries that cannot be corrected by a court's decision.  For example, a statute might mandate that the FS perform a wilderness study for submission to Congress and then the President for a Wilderness designation, but the FS may choose not to peform that study within the time-frame required.  If the FS' failure to perform that study is challenged in court with a request that the FS be compelled to perform that study, a court could use this decision to find that either there is no "real harm or injury" arising from the fact that a wilderness study has not been prepared, or alternatively---the harm alleged (potential or ongoing damage to the wilderness character of the area in question) would not be resolved by a court decision ordering the FS to conduct the study.  The alleged harm can really only be addressed by an actual designation of a wilderness area by Congress and the President.

I expect the environmentalists' attorneys will try to find new ways to draft their complaints and claims in order to avoid this same result in other cases.  I do, however, believe that this could reduce some of the peripheral claims that have been included in recent litigation.  It will not, however, impact any claims or complaints that are based on allegations that the policies, practices and decisions of the NPS, BLM or FS somehow violate or ignore the essential requirements, policies, or provisions of any federal statutes.

It should close some doors and help keep things better focused on what Congress has mandated, rather than on what the environmentalists have been trying to bring up. 

I see it as very positive for our side.

This information is being provided to you for educational purposes only.  It should not be considered legal advice or a substitute for legal advice in any matter.

Steven B. Smith, Esq.

Law Offices of Steven B. Smith

299 South Main Street, 1326

Salt Lake City, Utah 84111

801.534.4443

stevesmith@utahslawfirm.net