The Center for Biological Diversity and the Central Arizona Paddlers Club (collectively Center) sued the United States Forest Service (USFS) for violating the Wild and Scenic Rivers Act (WSRA).[1] The Center claimed USFS failed to consider 57 rivers in Arizona that qualify for inclusion in the Wild and Scenic River System (WSRS) when planning the development of federal land. The district court dismissed the Center's suit for lack of subject matter jurisdiction. The Ninth Circuit had jurisdiction over the case pursuant to 28 U.S.C. section 1291. The Ninth Circuit reversed and remanded the case to the district court, holding USFS had a duty under the WSRA to consider the rivers and that the Center alleged facts evincing that USFS did not fulfill this requirement. As a result, the district court had the subject matter jurisdiction to hear the Center's claim.

Congress passed the WSRA in 1968 to protect certain segments of rivers from damming and development for generating electrified power. To be eligible for protection under the WSRA, a river must 1) flow freely and 2) possess at least one outstandingly remarkable value.[2] The outstandingly remarkable values include "scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values."[3] A river fulfilling these two characteristics may be designated scenic, recreational, or wild by either an act of Congress or by application from a state governor.[4]

In 1993, at the request of the Arizona congressional delegation, USFS conducted a study that identified 57 Arizona river segments that qualified as potential wild and scenic or recreational rivers and published its findings in a report (1993 Report). Under the WSRA, potentially wild and scenic rivers must be considered "[i]n all planning for the . . . development of water and related land resources . . . by all Federal agencies."[5] The Center claimed that USFS failed to take these 57 rivers into account when making development plans in violation of the WSRA. Because the WSRA does not provide for an independent cause of action, the Center brought suit under the Administrative Procedure Act (APA).[6] The district court found that the Center did not prove final agency action necessary for APA review and dismissed for lack of subject matter jurisdiction. The Ninth Circuit reviewed this dismissal de novo.

First, the Ninth Circuit addressed the Center's argument that the 1993 Report constituted "final agency action." Under the APA, the court only intervenes when final agency action takes effect.[7] The court stated that an agency action must signify the completion of the agency's decision-making process to be considered final. The Ninth Circuit determined that the 1993 Report represented only the first step in the process of designation under the WSRA and therefore was not final agency action.

The Ninth Circuit next turned to the Center's alternative argument that the court has subject matter jurisdiction over the Center's claim because USFS unlawfully withheld action by not considering the rivers in planning. The APA allows a claimant to ask a court to compel "agency action unlawfully withheld or unreasonably delayed."[8] To prove its right to bring suit under this provision, the Center had to prove the WSRA required USFS to act. The three steps to designating a river under the WSRA are: 1) USFS determines whether the river flows freely and possesses at least one outstandingly remarkable value, 2) the applicable federal agency determines whether the river is suitable for designation when other factors are taken into account, and 3) Congress decides whether to designate the river. The WSRA requires federal agencies to consider potential wild, scenic, and recreational rivers in developing resources.[9]

USFS argued the 1993 Report did not officially identify potential wild and scenic rivers, so it had no mandatory duty under the WSRA to consider them. USFS also contended that the WSRA does not contain an express statutory duty to protect rivers until they are labeled wild and scenic, and the 57 rivers had not been labeled as such. To overcome these arguments and establish a right to review, the Center had to prove that USFS had a statutory mandate to consider the rivers, and that USFS did not comply with that agency mandate.

To prove that USFS had a statutory mandate, the Center pointed to the language of the WSRA which states that USFS "shall" consider the effect use and development plans for land and water would have on "potential" wild and scenic rivers.[10] The Ninth Circuit first determined that the 1993 Report identified potential rivers as required by the WSRA. The court rejected USFS's argument that it does not typically identify wild and scenic rivers by this method because the WSRA does not require particular methods for identifying potential rivers. In addition, USFS could not identify any substantive flaws with the 1993 Report, the Report identified statutory requirements for river eligibility, and the rivers in the report were listed on the Nationwide Rivers Inventory.

Second, the court found that USFS's duty to consider those potential rivers was a mandatory requirement. To do so, it relied on its reasoning outlined in Montana Wilderness Ass'n v. United States Forest Service,[11] where the Ninth Circuit held that the Montana Wilderness Study Act,[12] which required USFS to maintain possible wilderness study areas in their existing condition, imposed a duty of USFS action. USFS had a "nondiscretionary, mandatory duty" to "'maintain' wilderness character and potential," enforceable via the APA.[13] The court distinguished this mandatory duty from the general policy statements analyzed in ONRC Action v. Bureau of Land Management.[14] The requirement to consider rivers was not a general instruction to USFS or a statement of policy, but a mandatory requirement analogous to that in Montana Wilderness Ass'n. The court determined that this duty to consider "potential" rivers did not preclude USFS from taking action with federal land, but did require the agency to consider the impact of the action prior to taking it. Therefore, the court held that USFS had a mandatory duty to consider the 57 rivers in planning decisions.

Finally, the court discussed whether the Center alleged facts in its complaint that established USFS's failure to satisfy its duty to consider the rivers. The court found that the Center alleged the requisite facts in this case. Although USFS claimed it has a policy of addressing potential wild and scenic rivers, the court "rejected this type of generalized defense" as it had in Montana Wilderness Ass'n.[15] In addition, the court held that USFS's intention to act the next time it revises its forest plans could not substitute for the agency actually considering the rivers. The Ninth Circuit concluded that USFS had a mandatory duty to consider the rivers in the 1993 Report, pursuant to the WSRA, and that USFS did not perform this duty. Therefore, the Center satisfied the standard of review under the APA and proved that the court had subject matter jurisdiction over the claim. The Ninth Circuit reversed the dismissal of the action for lack of subject matter jurisdiction and remanded to the district court.