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    Publish United States Court of Appeals Tenth Circuit: Filed

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    The document is a court ruling that affirms the dismissal of a complaint filed by plaintiffs seeking declaratory and injunctive relief regarding Colorado's Lynx Recovery Plan to introduce Canadian lynx. The court ruled that the plaintiffs lacked standing under the Administrative Procedure Act because they failed to identify any final agency action by the defendant agencies. Specifically, the court found that agreements to cooperate, pledges of future assistance, and participation in preparing the state plan did not constitute final agency actions as defined by the APA.

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    Publish United States Court of Appeals Tenth Circuit: Filed

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    39 views6 pages
    The document is a court ruling that affirms the dismissal of a complaint filed by plaintiffs seeking declaratory and injunctive relief regarding Colorado's Lynx Recovery Plan to introduce Canadian lynx. The court ruled that the plaintiffs lacked standing under the Administrative Procedure Act because they failed to identify any final agency action by the defendant agencies. Specifically, the court found that agreements to cooperate, pledges of future assistance, and participation in preparing the state plan did not constitute final agency actions as defined by the APA.

    Original Description:

    Filed: 2000-07-18 Precedential Status: Precedential Citations: 220 F.3d 1171 Docket: 99-1125

    Original Title

    Colorado Farm v. US Forest Service, 220 F.3d 1171, 10th Cir. (2000)

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    The document is a court ruling that affirms the dismissal of a complaint filed by plaintiffs seeking declaratory and injunctive relief regarding Colorado's Lynx Recovery Plan to introduce Canadian lynx. The court ruled that the plaintiffs lacked standing under the Administrative Procedure Act because they failed to identify any final agency action by the defendant agencies. Specifically, the court found that agreements to cooperate, pledges of future assistance, and participation in preparing the state plan did not constitute final agency actions as defined by the APA.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    39 views6 pages

    Publish United States Court of Appeals Tenth Circuit: Filed

    Uploaded by

    Scribd Government Docs
    The document is a court ruling that affirms the dismissal of a complaint filed by plaintiffs seeking declaratory and injunctive relief regarding Colorado's Lynx Recovery Plan to introduce Canadian lynx. The court ruled that the plaintiffs lacked standing under the Administrative Procedure Act because they failed to identify any final agency action by the defendant agencies. Specifically, the court found that agreements to cooperate, pledges of future assistance, and participation in preparing the state plan did not constitute final agency actions as defined by the APA.

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    of 6

    F I L E D

    PUBLISH

    United States Court of Appeals


    Tenth Circuit

    JUL 18 2000

    UNITED STATES COURT OF APPEALS


    PATRICK FISHER
    TENTH CIRCUIT
    Clerk

    COLORADO FARM BUREAU


    FEDERATION; COLORADO
    OUTFITTERS ASSOCIATION;
    COLORADO CATTLEMENS
    ASSOCIATION; COLORADO WOOL
    GROWERS ASSOCIATION,
    Plaintiffs-Appellants,
    v.
    UNITED STATES FOREST
    SERVICE, NATIONAL PARK
    SERVICE; UNITED STATES FISH
    AND WILDLIFE SERVICE;
    COLORADO WILDLIFE
    COMMISSION; JOHN W. MUMMA,
    in his official capacity as Director of
    the Colorado Division of Wildlife,

    No. 99-1125

    Defendants-Appellees.
    Appeal from the United States District Court
    for the District of COLORADO
    (D.C. No. 98-D-2696)
    William Perry Pendley (Monica S. Ernst and William Davis Thode, with him on
    the brief), of Mountain States Legal Foundation, Denver, Colorado, appearing for
    Plaintiffs-Appellants.
    Todd S. Kim, Attorney, Department of Justice (Lois J. Schiffer, Assistant

    Attorney General, Albert C. Lin, Andrea L. Berlowe, Evelyn S. Ying, Attorneys,


    Department of Justice, Kenneth Capps, U.S. Department of Agriculture, and
    Debra Hecox, U.S. Department of the Interior, with him on the brief),
    Washington, D.C., appearing for Federal Defendants-Appellees.
    Timothy J. Monahan, Assistant Attorney General, Natural Resources &
    Environment Section (Ken Salazar, Attorney General, with him on the brief),
    Denver, Colorado, appearing for Colorado Wildlife Commission, Colorado
    Division of Wildlife, and John W. Mumma, Defendants-Appellees.

    Before SEYMOUR, Chief Judge, TACHA and KELLY, Circuit Judges.


    SEYMOUR, Chief Judge.
    Plaintiffs filed this action in federal district court seeking declaratory and
    injunctive relief with respect to the State of Colorados Lynx Recovery Plan
    (the Plan), which proposed to introduce Canadian lynx into Colorado. The
    complaint alleged that the Forest Services involvement with the Plan violated the
    Administrative Procedures Act (APA), 5 U.S.C. 706(2)(A), because the Forest
    Service failed to follow the environmental reporting requirements set forth in the
    National Environmental Policy Act (NEPA), 42 U.S.C. 4332. In a thorough
    opinion, the district court granted the governments motion to dismiss for lack of
    Article III standing, and alternatively because it held there was no major Federal
    action triggering the application of NEPA. Plaintiffs appeal and we affirm,

    -2-

    albeit on different grounds. 1


    On appeal, the government contends that we lack jurisdiction over this
    matter because the complaint fails to allege any final agency action, resulting in
    lack of standing to pursue a claim under the APA. We review questions of
    standing de novo. See Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998).
    When considering a motion to dismiss, we must construe the complaint in favor of
    the complaining party and assume the truth of all factual allegations. See id. at
    1204. Because we agree plaintiffs have failed to demonstrate APA standing, we
    do not reach the Article III standing issue. See Jean v. Nelson, 472 U.S. 846, 854
    (1985) (courts should avoid reaching constitutional issues when statutory
    determinations are decisive).
    Because NEPA does not provide for a private right of action, plaintiffs rely
    on the judicial review provisions of the APA in bringing their claims. See 5
    U.S.C. 702. The plaintiffs must therefore satisfy the statutory standing
    requirements of the APA. Utah v. Babbitt, 137 F.3d at 1203. Specifically, they
    must establish that defendants took final agency action for which there is no
    other adequate remedy in court. 5 U.S.C. 704. See also id. 702; Lujan v.
    National Wildlife Fedn, 497 U.S. 871, 882 (1990).

    We may affirm the district court on any ground supported by the record.
    Gowan v. U.S. Dept of the Air Force, 148 F.3d 1182, 1189 (10th Cir. 1998).
    1

    -3-

    Whether federal conduct constitutes final agency action within the meaning
    of the APA is a legal question. See Utah v. Babbitt, 137 F.3d at 1207. The APA
    defines agency action as an agency rule, order, license, sanction, relief, or the
    equivalent or denial thereof, or failure to act. 5 U.S.C. 551(13). Plaintiffs
    have the burden of identifying specific federal conduct and explaining how it is
    final agency action within the meaning of section 551(13). See National
    Wildlife Fedn, 497 U.S. at 882; Catron County v. U.S. Fish & Wildlife, 75 F.3d
    1429, 1434 (10th Cir. 1996). In order to determine if an agency action is final,
    we look to whether its impact is direct and immediate, Franklin v.
    Massachusetts, 505 U.S. 788, 796-97 (1992); whether the action mark[s] the
    consummation of the agencys decisionmaking process, Bennett v. Spear, 520
    U.S. 154, 178 (1997); and whether the action is one by which rights or
    obligations have been determined, or from which legal consequences will flow,
    id.
    The complaint alleges the following federal conduct for our review. It
    asserts that Colorados reintroduction of the Canadian lynx will occur on federal
    land managed by the Forest Service, see Complaint, 6, with federal government
    consent, id. at 9, and that the Plan was agreed to, supported, and facilitated
    by the Forest Service, id. at 11. Colorado allegedly worked with the Forest
    Service in formulating the Plan, and various federal agencies performed
    -4-

    significant and substantial work, such as conducting geographic analyses,


    funding other analyses, and actively participating in public meetings regarding the
    project. Id. at 8.
    Plaintiffs then contend that an agreement between the United States
    Department of the Interior and the State of Colorado concerning programs to
    manage Colorados declining native species constitutes final agency action. We
    disagree. This document is merely a general agreement for state and federal
    agencies to work together in the future on specific projects and as such is not
    final agency action. See National Wildlife Fedn, 497 U.S. at 891-93 & n.2
    (general land review program in place to guide future site-specific decisions not
    final agency action). Plaintiffs also contend a letter written from the Regional
    Forester pledging the Forest Services readiness to aid Colorado in implementing
    the Lynx Recovery Plan is final agency action. An agencys intent to take action
    if requested does not constitute final agency action under section 551(13). See id.
    at 892. Plaintiffs finally claim the Forest Services participation with Colorado in
    formulating the Plan constitutes final agency action. Neither the Complaint nor
    the plaintiffs brief tells us how rights and obligations are determined by, or how
    legal consequences flow from, the federal involvement in preparing Colorados
    Plan. Moreover, non-binding assistance such as conducting and funding analyses
    and participating in public meetings is not agency action for the same reason. See
    -5-

    id.
    Plaintiffs have failed to meet their burden of identifying a final agency
    action as defined in section 551(13) for us to review. They therefore lack the
    statutory standing required to bring this claim under the APA. See, e.g., Chemical
    Weapons Working Group, Inc. v. U.S. Dept of the Army, 111 F.3d 1485, 1494
    (10th Cir. 1997) (dismissal for lack of APA standing was correct since plaintiffs
    failed to explain how agency conduct was agency action under section 551(13)).
    For the foregoing reasons, we AFFIRM the decision of the district court
    dismissing plaintiffs complaint.

    -6-

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