Brief Amicus Curiae Of Montana Wilderness Association In Support ...

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21 court’s remedy need not (and in MWA does not) intrude upon the agency’s management discretion. A. Section 706(1) Expressly Creates Subject Matter Jurisdiction to Review an Agency’s Final Failure to Act The Administrative Procedure Act expressly permits judicial review of an agency’s failure to act. It defines “agency action” as including “the whole or part of an agency rule, order, . . . or failure to act.” 5 U.S.C. §551(13) (emphasis added). Thus, under the APA, agency inaction is a type of agency action. This definition is hardly surprising, for common experience teaches that the failure to make a decision is itself a decision that may have serious consequences. Of course, not all agency inaction is subject to review. Rather, the failure to act must be a “final agency action,” id. §551(13), that is, a “final [‘failure to act’].” Further, the APA defines both the scope of judicial review of an alleged failure to act and the remedy: “The reviewing court shall—(1) compel agency action unlawfully withheld or unreasonably delayed.” Id. §706(1). That is, a court faced with a claim of agency failure to act must determine whether the agency “unlawfully withheld or unreasonably delayed” action and whether that failure to act is final, and if so, the court must “compel” that action. Implicit in §706(1) is the requirement that the agency have an unequivocal mandatory duty to act. See Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C. Cir. 1987) (where “an agency is under an unequivocal statutory duty to act, failure so to act constitutes, in effect, an affirmative act that triggers ‘final agency action’ review”). The statutory duty must leave no doubt that the agency must act, even though the precise details of the agency’s action—how it executes its duty—may be left to the agency’s discretion. The duty in Norton v. SUWA, as well as in MWA v. U.S. Forest Service, was unequivocal. For example, in the
22 Montana Wilderness Study Act, Congress decreed that the WSAs “shall . . . be administered by the Secretary of Agriculture so as to maintain their presently existing wilderness character and potential” for wilderness designation. Pub. L. No. 95-150, §3, 91 Stat. 1244 (emphasis added). The statute did not establish general goals for the Forest Service or merely authorize the agency to act at its own discretion. Rather, the Forest Service had continuing duties both to preserve the wilderness character of the WSAs, as it existed in 1977, and to preserve their potential for wilderness designation. BLM’s claim—namely, that judicial review is not available if the agency has discretion about how to carry out the action to be compelled—has no basis in the APA. As this Court has observed, Congress intended the APA be read broadly, and the APA’s “‘generous review provisions’ must be given a ‘hospitable’ interpretation.” Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967) (quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51 (1955)). Judicial review of an agency’s failure to act, in violation of an express statutory mandate, is essential to ensure agency compliance with the statute. Barring judicial review would create a zone of agency immunity from its blatantly unlawful and irreparably harmful inaction. Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001) (absent judicial review of action inaction, “agencies could effectively prevent judicial review of their policy determinations by simply refusing to take final action”). 13 13 As noted in footnote 10, the Forest Service has studiously avoided making any decision that would be subject to the administrative review process or judicial review under §706(2).
Page 1 and 2: No. 03-101 IN THE Supreme Court of
Page 3 and 4: ii TABLE OF CONTENTS QUESTION PRESE
Page 5 and 6: iv TABLE OF AUTHORITIES Cases Abbot
Page 7 and 8: vi Pub. L. No. 98-140, 97 Stat. 901
Page 9 and 10: 2 challenge an agency’s failure t
Page 11 and 12: 4 Congress further directed that th
Page 13 and 14: 6 are indigenous to the natural str
Page 15 and 16: 8 some WSAs (uses that would be pro
Page 17 and 18: 10 Increased ORV use since 1977 has
Page 19 and 20: 12 National Park. Id. Exh. 2M. The
Page 21 and 22: 14 filed, the Forest Service has no
Page 23 and 24: 16 Forest Service refused to analyz
Page 25 and 26: 18 land’s potential for designati
Page 27: 20 summary judgment was inappropria
Page 31 and 32: 24 The finality requirement in §70
Page 33 and 34: 26 wilderness character that existe
Page 35 and 36: 28 the Court was concerned that lit
Page 37: 30 CONCLUSION For the foregoing rea

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