U.S. Justices debate their role in land-use issue
By
Christopher Smith
The Salt Lake Tribune
4/6/04
WASHINGTON -- The U.S. Supreme Court doesn't want to see a judge
in the driver's seat of the Bureau of Land Management's off-road-vehicle
program in Utah.
But, several justices wondered during oral arguments Monday, at what
point does the agency's approach to protecting potential wilderness
areas from damage caused by motorized recreation require judicial
intervention?
"I'm not willing to accept it's the role of the courts to make
sure agencies toe the line," Justice Antonin Scalia told an attorney
for the Southern Utah Wilderness Alliance (SUWA), which asked the
court to uphold a 10th Circuit ruling compelling BLM to consider prohibiting
all-terrain-vehicle (ATV) use on public lands being studied for possible
wilderness designation.
A decision in the case, not expected for several months, could dramatically
affect the amount of undeveloped backcountry across the West available
for Congress to consider for wilderness protection. It could allow
BLM to defer aggressive restrictions on ATVs while the continued creation
of dirt roads across those lands by the vehicles eventually disqualify
them from consideration.
The government appealed the 10th Circuit ruling because of a broader
concern, arguing that if the court can direct BLM's ongoing management
of the wilderness study program, a tide of lawsuits could hit all
federal agencies over the fulfillment of broad statutory duties traditionally
left to administrators' discretion.
Although BLM's own management plans had set a 1992 deadline to address
ATV use inside southern Utah wilderness study areas, Solicitor Edwin
Kneedler told the court "those plans do not impose legal obligations
that are owed to the public." Therefore, he said, courts have
no authority to compel BLM to follow its own management plans.
"So the plans are largely aspirational -- they are wish lists?"
asked Justice Ruth Bader Ginsburg.
"That's basically our position," responded Kneedler.
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SUWA attorney Paul Smith called that "implausible," saying
BLM's failure to address skyrocketing ATV use was sufficiently harmful
to prompt judicial relief.
Justice John Paul Stevens echoed a SUWA argument that BLM's decision
to only monitor ATVs in the study areas may be a "final agency
action" subject to court review.
"So if the world convention of off-road-vehicles is on and 100,000
people are there, the agency . . . just goes out and watches the race?"
Justice Anthony Kennedy asked the solicitor.
In such a situation, said Kneedler, groups could sue if a special
use permit was issued by the BLM.
If the high court affirms the 10th Circuit decision, justices said
it could open the door to broad-based legal challenges of agency operations,
putting judges in the role of public land managers.
"What they are worried about is you are turning over to a district
judge the generalized job of running the BLM's off-road-vehicle program,"
Justice Stephen Breyer told Smith.
csmith@sltrib.com