UTAH NATIVE PLANT SOCIETY; GRAND CANYON TRUST, Plaintiffs - Appellants,
UNITED STATES FOREST SERVICE; TOM TIDWELL, in his official capacity as Chief of the U.S. Forest Service, Defendants - Appellees. STATE OF UTAH; STATE OF ALASKA; STATE OF COLORADO; STATE OF IDAHO; STATE OF KANSAS; STATE OF NEBRASKA; STATE OF WYOMING; NEW MEXICO DEPARTMENT OF GAME AND FISH; ASSOCIATION OF FISH AND WILDLIFE AGENCIES, Amici Curiae.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH (D.C. No. 2:16-CV-00056-PMW)
Paul (Neil Levine with him on the briefs), Grand Canyon
Trust, Denver, Colorado, for Plaintiffs-Appellants.
C. Bennett, Assistant United States Attorney (John W. Huber,
United States Attorney, with him on the brief), Salt Lake
City, Utah, for Defendants-Appellees.
D. Reyes, Utah Attorney General, Tyler R. Green, Utah
Solicitor General, and Martin B. Bushman and Gregory Hansen,
Assistant Utah Attorneys General, Salt Lake City, Utah, filed
an Amicus Curiae Brief for the States of Utah, Alaska,
Colorado, Idaho, Kansas, Nebraska, and Wyoming, and the New
Mexico Department of Game and Fish in support of
Frampton and Lane Kisonak, Association of Fish and Wildlife
Agencies, Washington, D.C., filed an Amicus Curiae Brief for
the Association of Fish and Wildlife Agencies in support of
BRISCOE, BALDOCK, and EID, Circuit Judges.
BALDOCK, CIRCUIT JUDGE.
Sal Mountain Range, located in southeastern Utah on the
Colorado Plateau, encompasses the vast acreage of the
Manti-La Sal National Forest. The highest elevations of the
national forest support one of the rare alpine communities in
the region. At these elevations, sensitive tundra vegetation
grows among talus rock and rare plants find their home. To
preserve this particular community, Defendant United States
Forest Service (FS) in 1988 designated a 2, 380 acre portion
of the Manti-La Sal National Forest's highest elevations,
namely the summits and ridges of Mt. Peale, Mt. Mellenthin,
and Mt. Tukuhnikivatz, as the Mt. Peale Research Natural Area
(RNA). According to an FS regulation, an RNA
should "illustrate adequately or typify for research or
educational purposes, the important forest and range types in
each forest region, as well as other plant communities that
have special or unique characteristics of scientific interest
and importance." 36 C.F.R. § 251.23. The applicable
regulation further provides an RNA "will be retained in
a virgin or unmodified condition except where measures are
required to maintain a plant community which the area is
intended to represent." Id. According to the
instant suit, "until 2013, the Forest Service adhered to
its rules and preserved the [Mt. Peale RNA] in an unmodified
enter the State of Utah's Division of Wildlife Resources
(UDWR), the "wildlife authority for Utah . . . [s]ubject
to the broad policymaking authority of the Wildlife
Board." Utah Code Ann. § 23-14-1(1)(b), (2)(a). In
June 2013, the Utah Wildlife Board approved UDWR's
"Utah Mountain Goat Statewide Management Plan."
Among other things, UDWR's plan anticipated the release
of a target population of 200 mountain goats into the La Sal
Mountains adjacent to the Manti-La Sal National Forest for
the express purposes of hunting and viewing. The FS, rightly
concerned the goats might adversely affect the habitat of the
higher alpine regions of the national forest, responded by
asking UDWR to delay implementation of its plan while the FS
in coordination with UDWR studied the plan's expected
impact on the national forest and the RNA. Unfortunately,
UDWR rejected the FS's request for an outright delay.
UDWR indicated it would begin implementing its plan by
transplanting a small number of goats into the mountains, but
would work cooperatively with the FS to assess impacts and
develop a strategy to prevent overutilization of the habitat.
In September 2013, UDWR released twenty mountain goats on
State lands adjacent to the Manti-La Sal National Forest. A
year later, UDWR released an additional fifteen mountain
goats on the same State lands.
point, Plaintiff Grand Canyon Trust (GCT) said
enough. The goats, to no one's surprise, had
moved into the La Sal Mountains' higher elevations.
There, according to GCT, the goats were wallowing and
foraging within the national forest and more particularly
within the Mt. Peale RNA. Noting ongoing harm to the Mt.
Peale RNA and citing 36 C.F.R. § 251.23, GCT demanded
the FS (1) prohibit UDWR from introducing additional mountain
goats onto State lands adjacent to the national forest, (2)
regulate UDWR's occupancy and use of the national forest
by requiring it to obtain special use authorization before
releasing additional mountain goats on State lands, and (3)
immediately remove the mountain goats already in the national
denied GCT any relief, at least for the time being. In a
letter to GCT, the Chief of the FS explained "[t]he
Forest Service does not regulate or control UDWR's
activities that do not occur on NFS [National Forest Service]
land, and your request that the Forest Service prevent UDWR
from transplanting goats anywhere in the La Sal Mountains is
beyond the control of the Forest Service." The Chief
further explained UDWR was not required to seek a special use
permit to use the national forest before releasing the
mountain goats on State lands: "[T]he UDWR did not
release the mountain goats on NFS land, and therefore was not
using or occupying NFS land at the time of the mountain goats
release. The mountain goats have strayed onto adjacent NFS
land, including the land within the Mount Peale RNA, after
they were released on non-Federal land by UDWR." Lastly,
the FS Chief took a "wait and see" attitude with
regard to GCT's request that the FS remove or destroy any
mountain goats not only in the Mt. Peale RNA but throughout
the national forest:
[T]he Forest Service is working cooperatively with UDWR to
evaluate any resource impacts and to determine an
appropriate action, including consideration of removal of
the mountain goats from the RNA or reduction in herd
Before initiating any such action, the Forest Service will
work with UDWR to gather and evaluate data sufficient to
determine whether that action is warranted, and then will
work cooperatively with UDWR to determine and implement the
appropriate course of action.
GCT's lawsuit for declaratory and injunctive relief
muddled complaint alleged five "claims for relief"
against the FS arising under federal law, all pursuant to the
judicial review provisions of the Administrative Procedures
Act (APA), 5 U.S.C. §§ 701-706. GCT represents that
only two of its claims are before us on appeal. GCT's
first claim seeks relief under APA § 706(2) and alleges
the FS -knowing full well UDWR's mountain goat plan would
result in goats migrating into the Manti-La Sal National
Forest and the Mt. Peale RNA-acted arbitrarily, capriciously,
and unlawfully by denying GCT's three demands for relief.
Meanwhile, GCT's second claim seeks relief under APA
§ 706(1) and alleges the FS unlawfully failed to act by
refusing to comply with the FS regulation mandating RNA's
"will be retained in a virgin or unmodified
condition." 36 C.F.R. § 251.23.
moved to dismiss GCT's complaint in its entirety under
Fed.R.Civ.P. 12(b)(1) for failure to allege final agency
action as required by APA § 704, and thus subject matter
jurisdiction over the Government, which enjoys sovereign
immunity absent congressional waiver. The district court
granted the motion:
Plaintiffs have cleverly amalgamated federal law in an
attempt to find some pathway to judicial review. Pulling
apart Plaintiffs' contortions, the court [concludes] that
it has no jurisdiction to review the Forest Service's
action or inaction with respect to the mountain goats'
occupation of the Manti-La Sal National Forest. . . . The
Forest Service has not determined whether the goats'
presence in the Manti-La Sal National Forest violates federal
law or the existing Forest Plan. Nor has the Forest Service
decided that it will never act on Plaintiffs' requests.
The State acted and now the Forest Service is in the
reactionary position attempting to determine what agency
action, if any, is warranted. Accepting Plaintiffs'
allegations as true, the court [holds] that Plaintiffs have
failed to provide the court any action or inaction on behalf
of the Forest Service that is reviewable under the APA.
Utah Native Plant Soc'y v. United States Forest
Serv., 2017 WL 822098, at *5 (D. Utah 2017)
(unpublished). GCT appeals. Our jurisdiction arises under 28
U.S.C. § 1291. Our review of the complaint's
sufficiency is de novo. See Jones v.
Needham, 856 F.3d 1284, 1289 (10th Cir. 2017).
we consider the FS to make a facial attack on GCT's
complaint, we "apply a standard patterned on Rule
12(b)(6) and assume the truthfulness of the facts
alleged." Garling v. Envtl. Prot. Agency, 849
F.3d 1289, 1293 n. 3 (10th Cir. 2017). We may supplement the
complaint's well-pleaded facts, however, with the
contents of documents referred to therein "if the
documents are central to [GTC's] claim[s] and the parties
do not dispute the documents' authenticity."
Hampton v. Root9B Tech., 897 F.3d 1291,
1297 (10th Cir. 2018). While we uphold dismissal of GCT's
complaint under the foregoing standards, we believe the
district court missed the mark when it concluded that because
the FS is currently in the process of deciding what to do, if
anything, about the goats' presence in the national
forest and RNA, it lacked jurisdiction to review the FS's
"action or inaction" in its entirety.
begin by analyzing GCT's first claim which, as we have
described, alleges three instances of unlawful agency action.
APA § 702 generally authorizes suit by "[a] person
suffering legal wrong because of agency action."
"'[A]gency action' includes the whole or a part
of an agency rule, order, license, sanction, relief, or
the equivalent or denial thereof, or failure to
act[.]" APA §551(13) (emphasis added). APA §
704 requires the challenged "action"-or, more
accurately in this case, the FS's respective denials of
GCT's three demands-constitute "final agency
action." In Bennett v. Spear, 520 U.S. 154,
177-78 (1997), the Supreme Court decided that before agency
action becomes final, such action must meet two conditions:
"First, the action must mark the 'consummation'
of the agency's decisionmaking process-it must not be of
a merely tentative or interlocutory nature. And second, the
action must be one by which 'rights or obligations have
been determined,' or from which 'legal consequences
will flow[.]'" (citations omitted). APA §
704's requirement of final agency action readily applies
to GCT's first claim for relief under APA § 706(2)
because subsection (2) directs a reviewing court to
"hold unlawful and set aside agency action . .
. found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law[.]"
first instance of FS action about which GCT complains is the
former's denial of any authority to prohibit UDWR from
releasing mountain goats on Utah State lands
adjacent to the Manti-La Sal National Forest. Such denial
surely constitutes final agency action. The FS explained that
because it "does not regulate or control UDWR's
activities that do not occur on NFS land," it cannot
"prevent UDWR from transplanting goats anywhere in the
La Sal Mountains." GCT's first demand, in other
words, was "beyond the control of the Forest
Service." This determination was not "merely
tentative or interlocutory in nature"; it was
conclusive. Bennett, 520 U.S. at 178. The FS told
GCT that it did not have the legal authority to prevent the
State of Utah from releasing mountain goats on State
lands-first demand denied; end of discussion. The FS's
denial of GCT first demand was based on a "final and
binding" decision that "mark[ed] the
'consummation' of the agency's decisionmaking
process" and from which "'rights and
obligations have been determined.'" Id.
while the FS's denial of GCT's first demand
constitutes final agency action, this demand still plainly
fails as a matter of law. See Aguilera v.
Kirkpatrick, 241 F.3d 1286, 1290 (10th Cir. 2001)
(recognizing that where a district court dismisses a
complaint for lack of subject matter jurisdiction, we may
affirm dismissal of the complaint for failure to state a
claim under the same standards). GCT acknowledges, as it
must, that Utah has broad trustee and police powers over
wildlife within its borders. See Kleppe v. New
Mexico, 426 U.S. 529, 545 (1976). But these powers, GCT
tells us, are constrained by federal preemption principles
derived from the Constitution's Supremacy Clause.
See U.S. Const. art. VI, cl. 2. With this much we
agree. GCT next turns to the Constitution's Property
Clause, which provides: "Congress shall have Power to
dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States." Id. art. IV, § 3, cl. 2.
GCT tells us the Property Clause extends to activities that
endanger federal lands but are ...