U.S. Justices debate their role in land-use issue

By Christopher Smith
The Salt Lake Tribune


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.


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.



In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref. http://www.law.cornell.edu/uscode/17/107.shtml]

Back to Current Edition Citizen Review Archive LINKS Search This Site