completion of the EIS and grant all declaratory relief, it would not
prevent other decision-makers from using the best available science or
remedy the alleged harm caused by those decisions already made.
Plaintiffs may not take a "programmatic" approach to lawsuits, whereby
they attempt to invalidate all agency projects with which they disagree
by launching an overarching attack on government action at a more general
level. See Lujan v. Defenders of Wildlife, 504 U.S. at 567, 112 S.Ct.
2130 (holding that plaintiff's claims were not redressable.)
In short, having reviewed the complaint, the Vincent Declaration, and
all other materials filed by the plaintiffs, the Court concludes that
CGNW lacks standing to press any of its claims, since it has failed to
satisfy its burden of demonstrating any of the three elements needed to
establish constitutional standing.
II. Judicial Review: "Final Agency Action"
The United States and its agencies are not amenable to suit, absent a
statutory waiver of sovereign immunity. See J.B. Floyd v. District of
Columbia, 129 F.3d 152, 155 (D.C.Cir. 1997) ("Where the United States is
the defendant, . . . federal subject matter jurisdiction is not enough;
there must also be a statutory cause of action through which Congress has
waived sovereign immunity."). Plaintiffs' complaint asserts violations of
a host of federal land management statutes — but not the APA
— as the basis for this Court's jurisdiction. With the exception of
the RFA, however, none of the statutes cited in the complaint confers a
private right to judicial review for alleged violation of its provisions.
In their Opposition plaintiffs suggest that, although they did not cite
the APA in their complaint, they are relying on it nonetheless as a basis
for judicial renew.
The APA and the RFA only provide for judicial review of "final agency
actions." See 5 U.S.C. § 704 and 5 U.S.C. § 611 (a)(1). In order
for an agency action to be considered final, it must satisfy two
requirements: (1) The action must "mark the consummation of the agency's
decision-making process" and must not be of a "merely tentative or
interlocutory nature," and (2) the action must be one by which "rights or
obligations have been determined," or from which "legal consequences will
flow." Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d
281 (1997). "It is thus well established that Draft EISs are not subject
to judicial review." Committee Against Railroad Relocation v. Adams,
471 F. Supp. 142, 145 (E.D.Ark. 1979). Until the U.S. Forest Service and
Bureau of Land Management have "exercised their discretion in approving
or not approving a project or performed some act that could affect the
impact area, there is no basis on which to predicate judicial review."
Id. (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
411-18, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Camp v. Pitts, 411 U.S. 138,
141-42, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); and Toilet Goods Ass'n.,
Inc. v. Gardner, 387 U.S. 158, 162-68, 87 S.Ct. 1520, 18 L.Ed.2d 697
Plaintiffs concede that the ICBEMP process is not final, but they
insist that other federal officials are using the scientific
"assumptions, findings, and conclusions" generated by the project "for
making decisions regarding the management of other federal lands in the
Pacific Northwest." Opposition at 3-4. Plaintiffs provide several
examples of environmental impact statements or assessments, prepared in
connection with other unrelated land management projects, which cite or
consider data collected for the ICBEMP; and from these examples
plaintiffs contend that the ICBEMP, although incomplete, is being
implemented as a final agency action. The Court disagrees.
Even assuming that jurisdiction under the APA had been alleged in the
complaint, the APA does not confer jurisdiction to review such a
See Lujan v. National Wildlife Federation, 497 U.S. at 894, 110 S.Ct.
3177 ("Except where Congress explicitly provides for our correction of
the administrative process at a higher level of generality, we intervene
in the administration of the laws only when, and to the extent that, a
specific `final agency action' has an actual or immediately threatened
effect."). Here, plaintiffs have not challenged a specific final agency
action that has caused or is expected to cause them imminent harm.
Rather, plaintiffs have challenged two draft EISs that they admit were
not finalized at the time they filed the complaint,*fn12 and which have
since undergone significant changes, including the exclusion of twelve
million acres of land from the project's purview. The fact that federal
decision-makers in unrelated contexts have considered the scientific
findings from the ICBEMP does not translate into a "final agency action"
for purposes of the APA. If plaintiffs have a basis to complain about the
South Tower Fire Recovery Project or the Wood Rat Environmental
Assessment, they must challenge the projects individually and not through
the blunderbuss approach they have adopted here of attacking the ICBEMP.
See Lujan v. National Wildlife Federation, 497 U.S. at 891, 110 S.Ct.
3177 ("[R]espondent cannot seek wholesale improvement of this program by
court decree rather than in the offices of the Department or the halls of
Congress, where programmatic improvements are normally made."). Were the
Court to adopt plaintiffs' expansive definition of "final agency action"
and grant the type of sweeping relief they seek, it would certainly
disrupt the ongoing planning and conservation efforts of federal land
managers who depend on the use of the best science available for their
decisions. See Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget
Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970)
(holding that an agency action should have reached a stage where judicial
review "will not disrupt the orderly process of adjudication and . . .
rights or obligations have been determined or legal consequences will
flow from the agency action").
Thus, the Court holds that the case may be dismissed for the
alternative reason that the ICBEMP is not a final agency action within
the meaning of the APA or the RFA, and plaintiffs have provided no other
statutory authority for the exercise of this Court's jurisdiction.