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

23
B. The Forest Service’s Failure to Maintain Presently
Existing Wilderness Character and Wilderness
Potential, Which Has Led Directly to Irreparable
Harm, Is Final
BLM also maintains that BLM’s inaction is not final
agency action because the action withheld—preventing
impairment of wilderness values—would not itself be a final
agency action. BLM Br. 15-20. BLM’s extreme position
distorts the statutory language and serves no practical
purpose other than to immunize unlawful agency inaction
from review. Rather than eliminate an entire category of
litigation brought to challenge statutory violations that cause
irreparable harm, the Court should establish criteria to guide
lower courts in determining whether the agency’s failure to
act may be deemed final.
The APA defines “failure to act” as a species of agency
action, just as it defines a “rule” as a type of agency action.
5 U.S.C. §551(13). In both instances, only a final agency
action—that is, only final failure to act or a final rule is
reviewable. Id. §704. Nothing in the APA, however,
supports BLM’s position that §704 should be read to limit
judicial review to a “final [‘failure to act]” where the action
to be compelled also is a final agency action. There is only
one finality requirement in the APA, not two, and that
requirement applies to the challenged agency action, in this
case a “failure to act.”
Concededly, deciding whether an agency’s failure to act
is final is not always as clear as when the agency takes a
specific action, such as adopting a rule or establishing a final
plan of action based on a record of decision. In some cases,
such as the failure to issue a regulation by a statutory
deadline, the finality is clear enough. In other cases,
however, finality must be established by reference to
pragmatic criteria derived from the purpose of the finality
requirement.