From Public Land News VOLUME 28 NUMBER 12, JUNE 13, 2003
BUSH TEAM MAY ASK TOP COURT TO REVERSE BLM WSA DECISION
The Bush administration told the Supreme Court last month that it may appeal a circuit court decision that ordered BLM to protect wilderness study areas (WSAs). The administration has until June 18 to decide whether to appeal to the Supreme Court.
But a May 18 filing of Solicitor General Ted Olson gives every indication that the administration will ask the Supreme Court to take the case. In his filing Olson argued vigorously against an August 29, 2002, decision of the Tenth U.S. Circuit Court of Appeals.
Olson said that the law the Tenth Circuit relied upon to order BLM to protect WSAs, Section 706(1) of the Administrative Procedures Act, is supposed to be used to prod an agency to reach a decision on a specific request, not to direct wholesale policy changes. "Section 706(1) is most naturally read as authorizing courts only to compel an agency to take some discrete and final 'agency action,' not to compel an agency to alter an ongoing course of conduct on a programmatic basis," said Olson.
The lawsuit at issue was brought by the Southern Utah Wilderness Alliance (SUWA) to force BLM to crack down on off-road vehicle use in 2.5 million acres of WSAs in Utah. The Tenth Circuit on Aug. 29, 2002, agreed with SUWA that BLM was not protecting the lands and invoked the Administrative Procedures Act to force BLM to act.
If Olson follows through and formally requests Supreme Court review, it will constitute the third major Bush administration initiative in recent days affecting WSAs in Utah.
On April 11 Secretary of Interior Gale Norton announced an agreement with Utah Gov. Michael Leavitt (R) that called for no further reviews of BLM land for possible designation as WSAs. The agreement also called for revocation of the designation of 3 million acres of wilderness inventory areas identified by BLM during the Clinton administration in 1996.
On April 9 Norton reached a separate agreement with Leavitt to establish a process for settling RS 2477 right-of-way (ROW) assertions. Under the agreement Interior will use new recordable disclaimer regulations to verify RS 2477 ROWs.
Environmentalists and their allies in Congress have not been silent. Various House members have written Norton asking her to reconsider both the WSA policy and RS 2477 review policy. In addition Rep. Mark Udall (D-Colo.) introduced legislation (HR 1639) April 3 that would establish minimum construction standards in order for ways or roads to qualify as RS 2477 ROWs.
SUWA and other environmental groups say the RS 2477 ROW policy is involved in the Tenth Circuit decision the administration may appeal to the Supreme Court. They contend the state and several Utah counties plan to use the RS 2477 process to obtain ownership of trails through the WSAs, and to allow ORV use to continue.
BUSH TEAM MAY ASK TOP COURT TO REVERSE BLM WSA DECISION
The Bush administration told the Supreme Court last month that it may appeal a circuit court decision that ordered BLM to protect wilderness study areas (WSAs). The administration has until June 18 to decide whether to appeal to the Supreme Court.
But a May 18 filing of Solicitor General Ted Olson gives every indication that the administration will ask the Supreme Court to take the case. In his filing Olson argued vigorously against an August 29, 2002, decision of the Tenth U.S. Circuit Court of Appeals.
Olson said that the law the Tenth Circuit relied upon to order BLM to protect WSAs, Section 706(1) of the Administrative Procedures Act, is supposed to be used to prod an agency to reach a decision on a specific request, not to direct wholesale policy changes. "Section 706(1) is most naturally read as authorizing courts only to compel an agency to take some discrete and final 'agency action,' not to compel an agency to alter an ongoing course of conduct on a programmatic basis," said Olson.
The lawsuit at issue was brought by the Southern Utah Wilderness Alliance (SUWA) to force BLM to crack down on off-road vehicle use in 2.5 million acres of WSAs in Utah. The Tenth Circuit on Aug. 29, 2002, agreed with SUWA that BLM was not protecting the lands and invoked the Administrative Procedures Act to force BLM to act.
If Olson follows through and formally requests Supreme Court review, it will constitute the third major Bush administration initiative in recent days affecting WSAs in Utah.
On April 11 Secretary of Interior Gale Norton announced an agreement with Utah Gov. Michael Leavitt (R) that called for no further reviews of BLM land for possible designation as WSAs. The agreement also called for revocation of the designation of 3 million acres of wilderness inventory areas identified by BLM during the Clinton administration in 1996.
On April 9 Norton reached a separate agreement with Leavitt to establish a process for settling RS 2477 right-of-way (ROW) assertions. Under the agreement Interior will use new recordable disclaimer regulations to verify RS 2477 ROWs.
Environmentalists and their allies in Congress have not been silent. Various House members have written Norton asking her to reconsider both the WSA policy and RS 2477 review policy. In addition Rep. Mark Udall (D-Colo.) introduced legislation (HR 1639) April 3 that would establish minimum construction standards in order for ways or roads to qualify as RS 2477 ROWs.
SUWA and other environmental groups say the RS 2477 ROW policy is involved in the Tenth Circuit decision the administration may appeal to the Supreme Court. They contend the state and several Utah counties plan to use the RS 2477 process to obtain ownership of trails through the WSAs, and to allow ORV use to continue.
