Coalition for Sustainable Resources Inc. vs. USFS

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, i Page 5 259 F3d 1244, *; 2001 U.S. App. LEXIS 17639, **; 53 ERC (BNA) 1368; 31 ELR 20864 resolution of the merits at this time might impede rather than promote efficient administration of the Endangered Species Act. nll In Roe v. Ogden, we articulated a slightly different test for ripeness: "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented." 253 F.3d at 1231. Notwithstanding the difference in articulation, the Roe standard essentially includes all the same considerations that appear in the HRI test. [**15] 1. The Issues Are Not Purely Legal Some aspects of this case involve pure questions of law. For example, the parties dispute whether 16 U.S.C. § 1536(a)(1) imposes any substantive requirements on a federal agency, or whether the agency instead maintains unfettered discretion to decide how to fulfill its conservation duty. If we were to rule that the Forest Service has unfettered discretion, the Coalition's case would likely fail on purely legal grounds. If we were to rule that § 1536(a)(1) imposes substantive requirements, however, we would then have to determine if increased timber harvesting in the Medicine Bow will promote conservation of the Platte River species. Will water produced 300 miles upstream reach the Platte River species and habitat, or will it be diverted by downstream users? Will the water be of an appropriate quality for these species? Will it accrue during the needed seasons? Will the proposed management techniques have collateral effects that must be considered, such as on other endangered species? It is evident that this case may raise numerous questions of fact or mixed questions of law and fact. "Where disputed facts exist and the [**16] issue is not purely legal, greater caution is required prior to concluding that an issue is ripe for review." Yeutter, 911 F.2d at 1417; cf. id. at 1418 (cautioning against "piecemeal review" when a case has some purely legal issues and some factual questions). [*1251] 2. The Agency Action Is Not Final Within the Meaning of the APA "Administrative fmality is interpreted pragmatically." Yeutter, 911 F.2d at 1417. Keeping this admonition in mind, we fmd that in the absence of a defmite statutory deadline for action, agency inaction can become "fmal" for these purposes in three situations. First, the agency might affirmatively reject a proposed course of action. See, e.g., NRDC v. Adm'r, EPA, 284 U. S. App. D. C. 136, 902 F.2d 962, 983 (D. C. Cir. 1990) (opinion of Wald, C.J.) (stating that if an agency "explicitly determines after review° not to change a rule, "that decision would, in most situations, ... be final"), vacated by voluntary dismissal, 921 F.2d 326 (D.C. Cir. 1991); cf. 902 F.2d at 989 (opinion of Edwards, J.) (stating that inaction is fmal when the agency has completed a rulemaking and there [**17] is "some clear indication that the disputed issue was considered during the rulemaking procedure"). Second, the agency might unreasonably delay in responding to the proposal. See, e.g., Sierra Club v. Thomas, 264 U.S. App. D.C. 203, 828 F.2d 783, 793-94 (D.C. Cir. 1987); cf. Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (IOth Cir. 1999) (stating that under the Endangered Species Act, "if an agency has no concrete deadline establishing a date by which it must act, and instead is governed only by general timing provisions ... a court must compel only action that is delayed unreasonably."); NRDC, 902 F.2d at 983-84 (opinion of Wald, C.J.) (stating that circumstantial "contextual or historical evidence," such as silence throughout an entire rulemaking cycle, may indicate that an agency is "hiding a fmal decision not to [act] behind its silence"). Third, the agency might delay responding to the proposal beyond the time in which action could be effective. See, e.g., Thomas, 828 F.2d at 793 ("Agency inaction may represent effectively final agency action that the agency has not frankly acknowledged: when administrative [**18] inaction has precisely the same impact on the rights of the parties as denial of relief, an agency cannot preclude judicial review by casting its decision in the form of inaction rather than in the form of an order denying relie£"). See generally Daniel P. Selmi, Jurisdiction To Review Agency Inaction Under Federal Environmental Law, 72 Ind. L.J. 65, 90-102 (1996) (describing five judicial tests for determining whether agency inaction is final); Peter H.A. Lehner, Note, Judicial Review of Administrative Inaction, 83 Colum. L. Rev. 627, 652-55 (1983) (stating that inaction is fmal when the agency either refuses to take particular requested actions or fails to act entirely before a deadline). This case presents none of the above situations. First, the Forest Service has not yet rejected the possibility of implementing Coalition's proposed management techniques. To the contrary, the district court found that the Forest Service is actively considering this course of action both in its revisions to the Medicine Bow forest plan and through its participation in the Cooperative Agreement. While the agency may not seek to evade judicial review by constantly [**19] beginning