See You in Court

Federal courts aren't the place to direct agencies' day-to-day activities.

Every year, Congress loads agencies up with thousands of new obligations, from big stuff like adding a Medicare prescription drug benefit to micro-requirements like building a research facility in a particular congressional district.

What happens when agencies react to such directives by just saying no, or by moving slowly or ineffectively to implement them? It's up to the courts to force action, right? If your response is "sure," then you should think a little harder, because a little micromanagement of agency operations by federal courts can be a dangerous thing.

The Supreme Court heard arguments on this issue recently in Norton v. Southern Utah Wilderness Alliance. The case involves the Bureau of Land Management's obligation under the 1976 Federal Land Policy and Management Act to protect certain public lands while studies are conducted to determine whether the lands should be designated as wilderness areas.

By all accounts, BLM has failed to protect four areas in Utah from extensive use by off-road vehicles while they are under study. The question is what, if anything, can be done about it in the courts. At the risk of sounding cavalier, the appropriate answer in this case-and many others like it-is, very little.

The Southern Utah Wilderness Alliance's original suit against the Interior Department, BLM's parent, invoked the 1946 Federal Administrative Procedure Act, which says federal courts can compel agencies to act under certain circumstances. But the act wasn't intended to govern exactly how agencies responded to congressional mandates. Rather, a federal district court determined, it was limited to final agency decisions and "mandatory, nondiscretionary activities"-not ongoing processes like monitoring land use. So in the Utah case, as long as BLM was doing something on its own timetable, the court ruled, the conservation group was out of luck.

A panel of judges on the 10th Circuit Court of Appeals overruled that judgment, saying that the obligation to protect Utah's land looked plenty "mandatory and nondiscretionary" to them. It's certainly tempting to back a decision that tries to force the BLM to stop sitting idly by while off-roaders rip up pristine Utah wilderness. (The Supreme Court "should make clear that the executive branch cannot go around invoking some imaginary discretionary authority to ignore laws it doesn't like," opined the New York Times in an editorial about the case.) But such an approach has serious consequences that could cripple the day-to-day management of federal operations.

In a dissenting opinion, 10th Circuit Judge Monroe McKay said the court's ruling "exposes agencies to attack by plaintiffs who believe that [federal immigration agencies are] not properly enforcing all of the immigration laws, or that the Fish and Wildlife Service is not sufficiently utilizing its authority to seek and conserve endangered species. . . . The majority's view . . . improperly permits plaintiffs unsatisfied with the day-to-day operations of various government agencies to attempt to control these operations through litigation."

Lawsuits are a lousy way to regulate agencies' behavior. They take no account of budgetary pressures or competing demands on agencies' staff and resources. So they should be limited to the big stuff, like when an agency clearly breaks the law or violates a citizen's rights. If courts take over the role of determining exactly how agencies will respond to the myriad demands that are placed on them, they will usurp a key executive branch function.

During oral arguments before the Supreme Court, several justices seemed to understand this point. "I'm not willing to accept your proposition that it's the role of the courts to make sure agencies toe the line," Justice Antonin Scalia told Paul Smith, who argued for the Southern Utah Wilderness Alliance before the court. "That's the president's role."

If Utah conservationists think BLM is dragging its feet, they should air their grievances before the agency, put pressure on Congress to mandate specific action (and provide the funds to undertake it) and, ultimately, make their feelings known in the voting booth and the court of public opinion-not the courthouse.

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