Of all our bizarre advertising conventions, perhaps the oddest is this: Whether one has just purchased a new Ford Explorer, Volkswagen Touraeg, or a Jeep, the good folks in Advertising Land would have it that the first thing one does is high-tail it to the desert, careen up the side of a red rock canyon, and park that now-filthy new vehicle on a precipice overlooking the Utah sunset. True, most of us just choose to celebrate the purchase of a new car with imprudent sex in the back seat. But as far as American advertisers are concerned, we are sexier, thinner, and happier when off-roading it in the vast western wilderness.
I mention all this because today's Supreme Court case ostensibly concerns the effects of off-road vehicles on potential wilderness areas. Which sounds like it might make for some glorious, wind-blows-through-your-hair oral argument. But this case is ultimately just about statutory construction, and the only thing blowing through your hair at the high court today is the sound of Justice Antonin Scalia's infinite follow-up questions. I also mention all this because—try as I may—I can't understand the appeal of buzzing around the wilderness in an ATV, digging up the fragile cryptobiotic crust, eroding the delicate soil, and polluting the rivers. But someone will enlighten me, I am sure.
Congress enacted legislation to preserve certain wilderness areas, giving the Bureau of Land Management the mandate to identify other lands with "wilderness characteristics" to be set aside in the future as protected wilderness areas. While the BLM studies these lands, the agency is under a congressional mandate "not to impair the suitability of such areas" for preservation as wilderness. This makes some sense—if the areas are being trashed pending designation as wilderness, they're unlikely to merit that label. In four such areas in Utah, the BLM has done a less than stellar job of preventing damage to the land from off-road vehicles. (This is undisputed, by the way, and not just my own hairy-legged-Birkenstock interpolation.) So, in 1999, the Southern Utah Wilderness Alliance joined other environmental groups to sue the BLM for failure to protect these areas. In 2001 when she was named secretary of the interior, Gale Norton became a name party to the suit. And Norton v. Southern Utah Wilderness Alliance was thus born. *
Here comes the yawn-inducing stuff: Under Section 706(1) of the Administrative Procedure Act, federal courts can compel federal agencies to act if they are sitting on their hands. So the environmental groups argued under Section 706(1) that the BLM should be forced to stop these areas from being degraded by off-road vehicles. The groups lost in the district court but prevailed in the 10th Circuit Court of Appeals, where a divided panel held that although federal courts could order agencies only to perform "mandatory, non-discretionary" duties, the congressional mandate requiring that the BLM keep the lands from being impaired, and manage the lands according to land-use plans, was mandatory and nondiscretionary and that ordering the BLM to do what it was supposed to be doing was not outrageous judicial meddling. The simple question for the court today, then, is whether it's better for courts to micromanage lazy agencies or have deserts that look like elephant skin.
Edwin Kneedler, from the U.S. solicitor general's office, begins his argument not in the dusty red rocks of the Utah desert but in the dusty dry text of Section 706(1). He argues that courts can't review internal policies—such as the BLM's ongoing management decisions about the protected areas—until those decisions are "final." When Sandra Day O'Connor points out that the BLM was over a decade late in implementing its own specific deadlines for action, Kneedler counters that an agency's plans are targets; a plan alone doesn't create "mandatory duties, enforceable by the public."
O'Connor asks whether any agency failure to implement its own plans could ever give rise to a legitimate lawsuit. Kneedler replies that if the BLM "chose to impose such a duty on itself," the public could sue for failure to meet that duty. That could happen. Justice David Souter asks about the BLM's duty to monitor these lands. Monitoring is certainly a mandatory thing, but it's also discretionary and not really final. "It's hard to know how much monitoring is enough," he says. "What if they just refuse to monitor? Can that get into court?" No, says Kneedler.
Justice Anthony Kennedy asks what would happen if there were a World Convention of Off-Road Vehicles in a potential wilderness area. Would the BLM have to take action, he asks, or would its officials "just go out and watch the race?" Kneedler mumbles something about the drivers needing permits, adding that someone could ask the BLM to prohibit such things, but that it's nuts for environmental groups to expect the courts to manage a "whole range of activities on the ground."
Ruth Bader Ginsburg points out the problem: "The agency is not doing enough about these vehicles. What could [the environmental groups] have done?" According to Kneedler, not much. Which is, in the view of a federal agency, what makes the very limited reach of Section 706(1) a good thing.
Paul Smith, on behalf of the Southern Utah Wilderness Alliance, says the government is trying to carve out a category of mandatory statutory duties that cannot be reviewed by courts. Justice Scalia points out that this is sort of the whole idea. "The role of the courts is to vindicate individual rights that have been violated." He adds, "I'm not willing to accept your proposition that it's the role of the courts to make sure agencies toe the line. That's the president's role." Scalia goes on to say that lots of agencies have mandates. "The federal communications statute mandates that an agency regulate broadcasting in the public interest, convenience, and necessity." But can people sue if broadcasting doesn't meet those standards? Smith says that language is too general to be enforceable.
Smith says that if citizens can't force the BLM to act under Section 706(1), the most they can do is "write a letter. You send these letters in, and they sit on people's desks." Ginsburg points out that his clients didn't even wait for the BLM to respond to their letter. She says it's one thing to ask to have an area closed, it's another to say "overall you are not doing your job," such that a court not only tells them how to do their job, but monitors it as well. Her gist seems to be that if the BLM were only doing a mediocre job, rather than a wholly awful one, there would be a stronger legal claim here.
Smith answers that not every agency mandate presents a legal claim. "It's not like we're trying to take over an agency," he says. But Chief Justice William Rehnquist says it sounds like that is precisely what they're trying to do. O'Connor, a lifelong connoisseur of wide open spaces, asks why a suit can't just be brought demanding that certain areas be closed. "The exhibits you've furnished are devastating," she adds. "It looks terrible."
In the end, the prospect of unending judicial oversight over lazy agencies seems too much for most of the court to tolerate. There are better and worse ways to force agency action, but seeking ongoing supervision over federal agencies seems unworkable. Certainly the BLM's position—that it can't be doing a crap job preserving these areas so long as it says it's doing something about it—is outrageous. But the notion that citizens can sue the INS or the FCC because they don't like the way they implement their mandates is worse. If you don't like Bush administration's environmental policies, vote for someone else this fall. But once a district court judge in Utah has taken over the management of the desert, she may well be micromanaging it for life.
Correction, March 31, 2004:Originally, Gale Norton was mistakenly spelled Gail Norton. And she was said to have been named to the suit in 1999, where she was in fact a named party only after being appointed secretray of the interior in 2001. (Return to the corrected paragraph.)