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

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INTEREST OF AMICUS CURIAE Montana Wilderness Association (“MWA”) 1 was founded in 1958 to protect Montana’s wilderness, wildlife habitat, and traditional recreational opportunities, such as back-packing, horse-packing, hunting, fishing, and wildlife appreciation. MWA’s representatives frequently appear before Congress on a host of wilderness and forest management issues. MWA was instrumental in securing the passage of the federal Wilderness Act of 1964 and the Montana Wilderness Study Act of 1977. It played a major role in obtaining the wilderness designation of every such area in Montana, the wild and scenic designations of the Missouri and Flathead rivers, and the national monument status for the Upper Missouri River Breaks. MWA actively participates in local, state, and federal administrative proceedings affecting Montana’s public lands, including Forest Service and Bureau of Land Management planning processes. MWA has played a leading role in several cases concerning wilderness protection. See, e.g., Montana Wilderness Association, Inc. v. U.S. Forest Service, 655 F.2d 951 (9th Cir. 1981); Montana Snowmobile Association v. Wildes, 103 F. Supp. 2d 1239 (D. Mont. 2000) (as Defendant-Intervenor). Most recently, and of special significance here, MWA is the lead plaintiff in Montana Wilderness Association, Inc. v. U.S. Forest Service, 314 F.3d 1146 (9th Cir. 2003) (MWA), which raises issues closely related to the issues before this Court in Norton v. Southern Utah Wilderness Alliance (SUWA). Both cases focus on the availability of judicial review under 5 U.S.C. §706(1) to 1 Pursuant to Supreme Court Rule 37.6, Amicus Curiae Montana Wilderness Association affirms that no counsel for any party in this case authored this brief in whole or in part, and also affirms that no person or entity, other than Montana Wilderness Association, has made a monetary contribution to the preparation or submission of this brief.
2 challenge an agency’s failure to take statutorily mandated action to protect the wilderness character of wilderness study areas. The Forest Service filed a petition for a writ of certiorari in the MWA case, which is being held pending the decision in Norton v. SUWA. Amicus seeks to supplement the argument of Respondents Southern Utah Wilderness Alliance, et al., by explaining, with reference to the Forest Service’s obligations under the Montana Wilderness Study Act, that the District Court had subject matter jurisdiction under §706(1) to hear the suit, that the suit and resulting remedy did not intrude upon the agency’s management discretion, and that absent judicial review the wilderness character of the wilderness study areas will be irreparably harmed. Pursuant to Supreme Court Rule 37.3, written permission from all parties for MWA to file this brief has been lodged with the Clerk of the Court. STATEMENT When it enacted the Montana Wilderness Study Act of 1977, Congress directed the Forest Service to maintain the then-presently existing wilderness character and potential of several wilderness study areas in Montana. The record in MWA v. U.S. Forest Service demonstrates that the Forest Service has failed to maintain wilderness values associated with these unique and irreplaceable resources, thereby causing irreparable injury. The Bureau of Land Management (“BLM”) contends that interested parties may not seek redress in district court for such injuries. This Court should reject BLM’s argument. 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. The Administrative Procedure Act expressly permits such suits, and such suits do
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: vi Pub. L. No. 98-140, 97 Stat. 901
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 and 28: 20 summary judgment was inappropria
Page 29 and 30: 22 Montana Wilderness Study Act, Co
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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