137 F.

3d 1193
46 ERC 1633, 28 Envtl. L. Rep. 20,561

STATE OF UTAH, Utah School and Institutional Trust Lands

Administration and Utah Association of Counties,
Plaintiffs-Appellees,
v.
Bruce BABBITT, in his official capacity as Secretary of the
interior; United states Department of the Interior; Sylvia
V. Baca, in her official capacity as Acting Director of the
Bureau of Land Management; United States Bureau of Land
Management, Defendants-Appellants,
Southern Utah Wilderness Alliance; Sierra Club; Natural
Resources Defense Council; Wilderness Society,
Amici-Curiae.
No. 97-4015.

United States Court of Appeals,

Tenth Circuit.
March 3, 1998.

Lisa E. Jones, Department of Justice, Washington, DC (Gary B. Randall

and John A. Bryson, Department of Justice; Paul Smyth, Wendy Dorman
and David Grayson, U.S. Department of the Interior, Office of the
Solicitor; Lois J. Schiffer, Assistant Attorney General; Scott M.
Matheson, Jr., United States Attorney, and Stephen J. Sorenson, Assistant
United States Attorney, Salt Lake City, UT, with her on the briefs), for
Defendants-Appellants.
Constance E. Brooks, C.E. Brooks & Associates, Denver, CO, (Michael
B. Marinovich, C.E. Brooks & Associates, Denver, CO; Jan Graham,
Attorney General for the State of Utah, and Stephen G. Boyden, Assistant
Attorney General, State of Utah, Salt Lake City, UT; Ronald W.
Thompson and Stephen H. Urquhart, Thompson & Associates, St. George,
UT; John W. Andrews, Special Assistant Attorney General for the Utah
School and Institutional Trust Lands Administration, Salt Lake City, UT,
with her on the briefs), for Plaintiffs-Appellees.

Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City,

UT, (Robert B. Wiygul, Sierra Club Legal Defense Fund, Denver, CO,
with her on the brief), filed an amicus curiae brief for Sierra Club Legal
Defense Fund, Natural Resources Defense Council, and Southern Utah
Wilderness Alliance.
Before MURPHY, LOGAN, Circuit Judges, and MILES-LaGRANGE* ,
District Judge.
MURPHY, Circuit Judge.

This case arises from Department of the Interior Secretary Bruce Babbitt's
decision to inventory certain public lands in Utah for wilderness characteristics.
Defendants appeal from the issuance of a preliminary injunction by the district
court on November 15, 1996, enjoining Defendants from proceeding further
with the inventory. We exercise jurisdiction under 28 U.S.C. 1292(a)(1).
Because we conclude that Plaintiffs lack standing to challenge the inventory,
we vacate the preliminary injunction and remand with instructions to dismiss
the seven causes of action directly related to the inventory and to further
consider Plaintiffs' sixth cause of action, the only cause of action not directly
related to the inventory.

I. BACKGROUND
A. Summary of Utah Wilderness Debate
2

A brief review of the history of the wilderness debate in Utah is necessary to

put the facts of this case into context. In 1976, Congress enacted the Federal
Land Policy and Management Act ("FLPMA") to, among other things, "
[e]stablish a mission for the public lands administered by the Secretary of the
Interior through the Bureau of Land Management" ("BLM"). H.R.Rep. No. 941163, at 431 (1976), reprinted in 1976 U.S.C.C.A.N. 6175, 6176. These public
lands comprise approximately one-fifth of the nation's land and are primarily
located in eleven western states and Alaska. See id.

FLPMA 201 requires the Secretary of the Department of Interior

("Secretary") to "prepare and maintain on a continuing basis an inventory of all
public lands and their resource and other values." 43 U.S.C. 1711(a). FLPMA
603 ordered the Secretary to review within fifteen years certain "roadless
areas of five thousand acres or more" and report to the President
recommendations concerning the "suitability or nonsuitability" of each area for
preservation as wilderness.1 43 U.S.C. 1782(a). Within two years after

receiving the Secretary's recommendations, the President was to advise

Congress of his recommendations. See id. 1782(b). An Act of Congress is
necessary to designate public lands as wilderness. See id.
4

Soon after FLPMA was enacted, BLM began its nationwide wilderness review
program in accordance with the Wilderness Inventory Handbook ("WIH"),
which was adopted to standardize the FLPMA 603 process. See BLM, U.S.
Dep't of the Interior, Wilderness Inventory Handbook 3 (1978) [hereinafter
WIH]. The review proceeded in three stages: (1) the "inventory" phase,
consisting of (a) an "initial inventory" to identify "wilderness inventory units,"
which were defined as roadless areas of 5000 acres or more that may have
wilderness characteristics, and (b) an "intensive inventory" of these units to
determine whether the units possessed wilderness characteristics and, if so,
designation of the units as "wilderness study areas" ("WSAs"); (2) the "study"
phase, during which WSAs were studied to determine whether the lands were
suitable for designation as wilderness; and (3) the "reporting" phase, consisting
of the Secretary's recommendations to the President and the President's
recommendations to Congress. WIH, supra, at 3, 9-11; see also Rocky
Mountain Oil & Gas Ass'n v. Watt, 696 F.2d 734, 740 (10th Cir.1982)
(discussing 603 wilderness review process). FLPMA 603 directed the
Secretary to "manage [the lands subject to the wilderness review process] ... so
as not to impair the suitability of such areas for preservation as wilderness." 43
U.S.C. 1782(c). To implement this directive, BLM adopted the Interim
Management Policy and Guidelines for Lands Under Wilderness Review
("IMP").2 See Rocky Mountain Oil, 696 F.2d at 739.

BLM initially reviewed approximately 22 million acres of federal public lands

in Utah and identified approximately 14.5 million acres that "clearly and
obviously" did not contain wilderness characteristics. See 44 Fed.Reg. 46,541
(1979). BLM subsequently conducted an intensive inventory of approximately
5.2 million acres to determine the presence or absence of wilderness
characteristics. See 45 Fed.Reg. 20,576 (1980); 45 Fed.Reg. 27,831 (1980). In
1980, BLM completed the inventory phase of the 603 wilderness review
process for public lands in Utah and, after a public comment period, published
its final inventory decision designating approximately 2.5 million acres as
WSAs. See 45 Fed.Reg. 75,602 (1980). In 1991, after lengthy administrative
appeals,3 then-Secretary Manuel Lujan, Jr. recommended to President George
Bush that approximately 1.9 million acres be designated as wilderness. See
BLM, U.S. Dep't of the Interior, Utah Statewide Wilderness Study Report 3
(1991). Shortly thereafter, President Bush forwarded the 1.9 million acre
recommendation to Congress. Although various groups, including the Utah
congressional delegation, have supported legislation to designate federal lands

in Utah as wilderness,4 Congress has not yet passed any such legislation.
B. 1996 Inventory
6

On July 24, 1996, Secretary Babbitt sent a letter to Utah Congressman James
Hansen acknowledging the "stalemate" on the Utah wilderness issue and
informing him that "a small team of career professionals, who have substantial
expertise in addressing wilderness issues in Utah and elsewhere," were going to
"take a careful look at the lands identified in the 5.7 million acre bill [H.R.
1500] that have not been identified by the BLM as wilderness study areas, and
report their findings."5 Letter from Bruce Babbitt, Secretary of the Interior, to
James V. Hansen, Chairman, Subcommittee on National Parks, Forests, and
Public Lands 2 (July 24, 1996). Babbitt noted the team was "explicitly
instructed to apply the same legal criteria that were used in the original
inventory" and estimated the work would be completed within six months. Id.

Although Representative Hansen, along with Utah Senators Orrin Hatch and
Robert Bennett, strongly opposed Babbitt's plan to "re-inventory" federal lands
in Utah, 6 the BLM team began its inventory fieldwork in September 1996. The
team proceeded with the inventory in accordance with the Utah Wilderness
Review Procedures ("1996 Procedures"), which were adopted by BLM
specifically for purposes of the 1996 inventory and which incorporated various
provisions of the WIH.

According to the Defendants in this action, the sole purpose of the 1996
inventory is to identify the presence or absence of wilderness characteristics on
the public lands. They assert the report based on the inventory will not contain
any recommendations concerning the suitability or unsuitability of the lands for
management as wilderness and neither the inventory nor the report will affect
the management of the public lands. Babbitt has consistently maintained that
once he reviews the results of the inventory, he will make the report public and
determine what further action, if any, will be taken.

C. Proceedings Below
9

In October 1996, the State of Utah, the Utah School and Institutional Trust
Lands Administration, and the Utah Association of Counties (collectively,
"Plaintiffs") filed suit in federal district court challenging the 1996 inventory on
various grounds and seeking to enjoin the Secretary and BLM from proceeding
with the inventory. Plaintiffs named as Defendants the Department of Interior;
Babbitt, in his official capacity as Secretary; BLM; and Michael Dombeck, in
his official capacity as acting director of BLM (collectively, "Defendants").

10

Plaintiffs alleged the following eight causes of action: (1) unauthorized

inclusion of state trust lands in the lands being inventoried; (2) arbitrary and
unequal treatment of Utah, in violation of the U.S. Constitution; (3) conducting
the inventory without authority; (4) failure to provide for public involvement in
the inventory, in violation of FLPMA; (5) failure to follow rule-making
procedures when promulgating the 1996 Procedures, in violation of FLPMA;
(6) de facto wilderness management of non-WSA federal lands, in violation of
FLPMA; (7) arbitrary change in interpretation of FLPMA and the WIH; and (8)
failure to prepare an environmental impact statement ("EIS"), in violation of the
National Environmental Policy Act ("NEPA"). Plaintiffs further alleged
generally that Defendants' actions exceeded their statutory authority and were
arbitrary and capricious, and should therefore be declared unlawful and set
aside under the Administrative Procedure Act ("APA").

11

In their Complaint, Plaintiffs requested the following relief: (1) a declaration

that Defendants have no authority to conduct the inventory or adopt the 1996
Procedures; (2) a declaration that Defendants' inclusion of state trust lands in
the inventory violates the Utah Enabling Act of 1894, FLPMA, and the U.S.
Constitution; (3) a declaration that Defendants' adoption of the 1996
Procedures and their implementation of the inventory violates FLPMA; (4) a
declaration that Defendants' imposition of different review criteria and
procedures for public lands in Utah violates the Utah Enabling Act of 1894,
FLPMA, and the U.S. Constitution; (5) a declaration that the inventory is a
"major federal action that may significantly affect the environment,"
necessitating preparation of an EIS; (6) an injunction prohibiting Defendants
from taking any action in connection with the inventory until they have
complied with FLPMA and NEPA; (7) an injunction prohibiting Defendants
from imposing a de facto wilderness management standard on non-WSA
federal lands until such time as they comply with FLPMA; (8) an injunction
prohibiting Defendants from making any use of information gathered during
the inventory process; and (9) an award of attorney fees and costs to the extent
permitted by law.

12

Approximately three weeks after Plaintiffs filed their Complaint, they filed a
motion seeking a temporary restraining order and preliminary injunction,
asking the district court to enjoin Defendants from completing the inventory
and from using information gathered during the inventory process.7 Plaintiffs
relied on three arguments to support their motion: (1) Defendants violated
FLPMA by failing to allow public involvement in the inventory process; (2)
Defendants violated the APA and FLPMA by failing to allow public comment
before adopting the 1996 Procedures; and (3) Defendants had no authority to
include state trust lands in the inventory.

13

Defendants responded to Plaintiffs' motion by arguing (1) Plaintiffs would not

suffer any irreparable injury if their motion was denied; (2) the case was not
ripe for review, as there was no "final agency action" for purposes of
proceeding under the APA; and (3) Plaintiffs could not show a likelihood of
success on the merits because the inventory did not require public participation,
adoption of the 1996 Procedures did not require informal rule-making, and the
Procedures were not arbitrary or capricious.

14

After a hearing, the district court granted Plaintiffs' motion and enjoined
Defendants from proceeding with the inventory. The court first concluded
Plaintiffs were likely to prevail on their legal claims. The court determined that
neither FLPMA 201 nor FLPMA 603 authorized the inventory. The court
then noted that even if 201 did authorize the inventory, Defendants violated
the section by failing to allow public participation. Next, the court concluded
that Plaintiffs would be irreparably harmed absent a preliminary injunction.
The court stated that "[i]f the Plaintiffs are denied involvement from the
earliest stages of the reinventory procedure, they may well be placed at a
serious disadvantage in challenging the factual basis for the reinventory results
once the process is complete." The court acknowledged, however, that "it is not
presently known what the results of the reinventory will be or for that matter
whether the Plaintiffs will disagree with those results." Nevertheless, the court
found that the "offer of public comment after the process is complete cannot
[remedy] the advantage Defendants would gain by developing inventory
criteria and conducting the inventory without public scrutiny." Finally, the
court concluded that the balance of interests favored the issuance of an
injunction.8 The district court therefore enjoined Defendants "from further
work on the Utah Wilderness Review until this case is finally adjudicated on its
merits."

15

Defendants appeal the district court's order enjoining them from completing the
1996 inventory and argue that Plaintiffs' claims should be dismissed for lack of
standing and ripeness. In the alternative, Defendants argue the district court
abused its discretion in granting the preliminary injunction because Plaintiffs
cannot show a likelihood of success on the merits. In support of this alternative
position, Defendants assert that BLM is authorized to conduct the inventory,
that no public participation is required during the inventory process, and that
the balance of hardships compels denial of injunctive relief.

II. DISCUSSION
A. Standing Requirements
16

Defendants challenge the district court's jurisdiction by attacking Plaintiffs'

16

Defendants challenge the district court's jurisdiction by attacking Plaintiffs'

standing to bring their claims.9 The requirement of standing " 'involves both
constitutional limitations on federal-court jurisdiction and prudential limitations
on its exercise.' " Bennett v. Spear, 520 U.S. 154, ----, 117 S.Ct. 1154, 1161,
137 L.Ed.2d 281 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct.
2197, 2204-05, 45 L.Ed.2d 343 (1975)). The notion of standing is grounded in
Article III of the U.S. Constitution, which restricts federal court adjudication to
actual cases or controversies. See Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct.
3315, 3324, 82 L.Ed.2d 556 (1984). The doctrinal foundation of Article III
standing is the principle of separation of powers. See id. at 750-52, 104 S.Ct. at
3324-25.

17

Standing is but one of several gatekeepers " 'founded in concern about the
proper--and properly limited--role of the courts in a democratic society.' " Id. at
750, 104 S.Ct. at 3324 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct.
2197, 2204-05, 45 L.Ed.2d 343 (1975)).

18 of the doctrines that cluster about Article III--not only standing but mootness,
"All
ripeness, political question, and the like--relate in part, and in different though
overlapping ways, to an idea, which is more than an intuition but less than a rigorous
and explicit theory, about the constitutional and prudential limits to the powers of an
unelected, unrepresentative judiciary in our kind of government."
19

Id. (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C.Cir.1983)
(Bork, J., concurring)).

20

Because Plaintiffs have invoked Article III jurisdiction to challenge the conduct
of the executive branch of government, the necessity of a case or controversy is
of particular import. See Region 8 Forest Serv. Timber Purchasers Council v.
Alcock, 993 F.2d 800, 804 (11th Cir.1993). The warnings against unrestrained
exercise of the power of judicial review over the conduct of the executive or
congressional branches by relaxation of the standing requirements are
numerous and dire. See, e.g., Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464, 473-74, 102 S.Ct.
752, 759-60, 70 L.Ed.2d 700 (1982); United States v. Richardson, 418 U.S.
166, 188-93, 94 S.Ct. 2940, 2952-55, 41 L.Ed.2d 678 (1974) (Powell, J.,
concurring). Restraint in the exercise of judicial review preserves not only the
power and vitality of the judiciary, but that of each of the other two coordinate
branches of federal government as well. See Valley Forge, 454 U.S. at 474, 102
S.Ct. at 759-60; Richardson, 418 U.S. at 188-89, 94 S.Ct. at 2952-53. Standing
to invoke the power of the federal courts is not a mere technical hoop through
which every plaintiff must pass, but rather is "a part of the basic charter
promulgated by the Framers of the Constitution." Valley Forge, 454 U.S. at

476, 102 S.Ct. at 761.

21

These principles of constitutional governance mandate strict compliance with

the standing requirement. See Raines v. Byrd, --- U.S. ----, ----, 117 S.Ct. 2312,
2317, 138 L.Ed.2d 849 (1997). Standing is not measured by the intensity of a
party's commitment, fervor, or aggression in pursuit of its alleged right and
remedy. See Doremus v. Board of Educ., 342 U.S. 429, 434-35, 72 S.Ct. 394,
397-98, 96 L.Ed. 475 (1952); Schlesinger v. Reservists Comm. to Stop the
War, 418 U.S. 208, 225-26, 94 S.Ct. 2925, 2934-35, 41 L.Ed.2d 706 (1974);
Valley Forge, 454 U.S. at 485-86, 102 S.Ct. at 765-66; Diamond v. Charles,
476 U.S. 54, 62, 106 S.Ct. 1697, 1703, 90 L.Ed.2d 48 (1986). Nor is the
perceived importance of the asserted right a substitute for constitutional
standing. See Valley Forge, 454 U.S. at 484-85, 102 S.Ct. at 765. The argument
that no other person is better suited to bring the lawsuit is equally unavailing.
See id. at 489, 102 S.Ct. at 767 (" '[T]he assumption that if [plaintiffs] have no
standing to sue, no one would have standing, is not a reason to find standing.' "
(quoting Schlesinger, 418 U.S. at 227, 94 S.Ct. at 2935)). Notwithstanding its
prominent gatekeeping role, the standing requirement of Article III should
never be interpreted to bar a party properly before the court from invoking the
power of judicial review.

22

To satisfy the standing requirement of Article III, Plaintiffs must demonstrate

the following:

23 that the plaintiff[s] have suffered an "injury in fact"--an invasion of a judicially

(1)
cognizable interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) that there [is] a causal connection
between the injury and the conduct complained of--the injury must be fairly
traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court; and (3) that it [is] likely,
as opposed to merely speculative, that the injury will be redressed by a favorable
decision.
24

Bennett, 520 U.S. at ----, 117 S.Ct. at 1163 (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351
(1992)); see also Phelps v. Hamilton, 122 F.3d 1309, 1316 (10th Cir.1997).
"The party invoking federal jurisdiction bears the burden of establishing these
elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130,
2136, 119 L.Ed.2d 351 (1992). The burden is therefore on Plaintiffs " 'clearly
to allege facts demonstrating that [they are] a proper party to invoke judicial
resolution of the dispute.' " United States v. Hays, 515 U.S. 737, 743, 115 S.Ct.
2431, 2435, 132 L.Ed.2d 635 (1995) (quoting Warth v. Seldin, 422 U.S. 490,

518, 95 S.Ct. 2197, 2215, 45 L.Ed.2d 343 (1975)).

25

"In addition to the immutable requirements of Article III, 'the federal judiciary
has also adhered to a set of prudential principles that bear on the question of
standing.' " Bennett, 520 U.S. at ----, 117 S.Ct. at 1161 (quoting Valley Forge,
454 U.S. at 474-75, 102 S.Ct. at 759-60). These prudential principles include
"the general prohibition on a litigant's raising another person's legal rights [and]
the rule barring adjudication of generalized grievances more appropriately
addressed in the representative branches." Allen, 468 U.S. at 751, 104 S.Ct. at
3324. "[U]nlike their constitutional counterparts, [these prudential
requirements] can be modified or abrogated by Congress." Bennett, 520 U.S. at
----, 117 S.Ct. at 1161.

26

Because neither FLPMA nor NEPA provide for a private right of action,
Plaintiffs rely on the judicial review provisions of the APA10 in bringing their
claims. Cf. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct.
3177, 3185-86, 111 L.Ed.2d 695 (1990) (noting that plaintiffs did not contend
that FLPMA and NEPA provide a private right of action and that plaintiffs were
proceeding under the APA). Consequently, in addition to the Article III
standing requirements,11 Plaintiffs must also meet the statutory standing
requirements of the APA: Plaintiffs must show there has been some "final
agency action" and must "demonstrate that [their] claims fall within the zone of
interests protected by the statute forming the basis of [their] claims." Catron
County Bd. of Comm'rs v. United States Fish & Wildlife Serv., 75 F.3d 1429,
1434 (10th Cir.1996).

27

Defendants argue that Plaintiffs lack Article III standing because they cannot
show an injury-in-fact flowing from the 1996 inventory.12 Defendants also
argue that Plaintiffs lack standing under the APA because the inventory does
not constitute a "final agency action" and because Plaintiffs cannot show they
are "aggrieved" within the meaning of the APA. See 5 U.S.C. 704, 702. This
court reviews questions of standing de novo. See Catron County, 75 F.3d at
1433. Because "[c]ase-or-controversy considerations ... 'obviously shade into
those determining whether the complaint states a sound basis for equitable
relief[,]' [t]he latter set of considerations ... inform our judgment about whether
[Plaintiffs] have standing." Allen, 468 U.S. at 760-61, 104 S.Ct. at 3329
(quoting O'Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 677-78, 38
L.Ed.2d 674 (1974)).

28

" '[S]tanding jurisprudence is a highly case-specific endeavor, turning on the

precise allegations of the parties seeking relief.' " Wyoming ex rel. Sullivan v.
Lujan, 969 F.2d 877, 882 (10th Cir.1992) (quoting National Wildlife Fed'n v.

Hodel, 839 F.2d 694, 703-04 (D.C.Cir.1988)). After carefully reviewing the
allegations in Plaintiffs' Complaint, this court concludes that seven of the eight
causes of action relate directly to the 1996 inventory.13 The only cause of action
not directly related to Defendants' decision to conduct the inventory is
Plaintiffs' sixth cause of action, claiming that Defendants are currently
imposing a de facto wilderness management standard on non-WSA federal
lands, in violation of FLPMA.
29

Although Plaintiffs have alleged eight causes of action, they have not alleged a
distinct identifiable injury for each cause of action. A thorough review of the
allegations in Plaintiffs' Complaint and the arguments in their appellate brief
reveals that Plaintiffs essentially allege five types of injury with respect to all
their causes of action: (1) Plaintiffs have generally been injured by Defendants'
acting in contravention of the law; (2) Plaintiffs have been injured by denial of
their right to participate in the inventory process; (3) Plaintiffs have been
injured by Defendants' imposition of a de facto wilderness management
standard on non-WSA federal lands, formalization of which is imminent due to
the 1996 inventory; (4) Plaintiffs have been injured by denial of their
opportunity to comment on whether the lands included in the inventory are
"roadless" and by Defendants' changes to their road maintenance policies; and
(5) Plaintiffs have been injured by Defendants' failure to prepare an EIS.
Analysis of each alleged injury is necessary to determine whether Plaintiffs
have met their burden of establishing the "irreducible constitutional minimum"
of standing: that they suffered an "injury-in-fact," i.e., an invasion of a
"judicially cognizable interest," which is "fairly traceable" to Defendants'
conduct and which will "likely be redressed by a favorable decision." Bennett,
520 U.S. at ----, 117 S.Ct. at 1161.

B. Standing to Challenge 1996 Inventory

30

Preliminarily, we note that "[the elements of constitutional standing] are not

mere pleading requirements but rather [are] an indispensable part of the
plaintiff's case." Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2136.
Consequently, "each element must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of the litigation." Id.

31

At the motion to dismiss stage, this court "must accept as true all material
allegations of the complaint, and must construe the complaint in favor of the
complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206,
45 L.Ed.2d 343 (1975). Further, "we 'presum[e] that general allegations
embrace those specific facts that are necessary to support the claim.' "

Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2137 (alteration in

original) (quoting National Wildlife Fed'n, 497 U.S. at 889, 110 S.Ct. at 3189).
Therefore, at the pleading stage, "general factual allegations of injury resulting
from the defendant's conduct may suffice." Id. "In response to a summary
judgment motion, however, the plaintiff can no longer rest on such 'mere
allegations,' but must 'set forth' by affidavit or other evidence 'specific facts,'
which for purposes of the summary judgment motion will be taken to be true."
Id. (quoting Fed.R.Civ.P. 56(e)). "[A]t the final stage, those facts (if
controverted) must be 'supported adequately by the evidence adduced at trial.' "
Id. (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115-16 n.
31, 99 S.Ct. 1601, 1616 n. 31, 60 L.Ed.2d 66 (1979)).
32

In their brief, Plaintiffs argue that although Defendants did not file a motion to
dismiss prior to appeal, this court should apply a motion to dismiss standard in
determining whether they have standing to challenge the 1996 inventory
because "when standing to sue is raised this early in the litigation, such as in the
context of a preliminary injunction, the [motion to dismiss standard] applies."14
Defendants, however, suggest a more stringent standard should apply in cases
such as this, when a plaintiff is the beneficiary of a preliminary injunction. Cf.
Church v. City of Huntsville, 30 F.3d 1332, 1336 & n. 1 (11th Cir.1994)
(applying motion to dismiss standard to determine standing on appeal from a
preliminary injunction because defendants did not challenge standing before the
district court, but "leav[ing] for another day a determination of the degree of
evidence necessary to support standing at the preliminary injunction stage
when the plaintiff is on notice that standing is contested").

33

We need not decide whether a heightened standard is generally appropriate to

establish standing at the preliminary injunction stage, however, because we
conclude that even under the more lenient motion to dismiss standard, Plaintiffs
have not met their burden of demonstrating standing to challenge the 1996
inventory. We accordingly evaluate Plaintiffs' alleged injuries through the lens
of the more lenient motion to dismiss standard.
1. Acting in Contravention of the Law

34

In their Complaint, Plaintiffs generally assert they have been injured because
Defendants are acting without authority and otherwise in contravention of
established procedures.15 On appeal, Plaintiffs appear to abandon these
arguments altogether in the standing context16 and for good reason: the mere
allegation that Defendants are acting without authority or in violation of the law
is insufficient to establish standing.

35

The Supreme Court "has repeatedly held that an asserted right to have the
Government act in accordance with [the] law is not sufficient, standing alone, to
confer jurisdiction on a federal court." Allen, 468 U.S. at 754, 104 S.Ct. at 3326
(holding plaintiffs lacked constitutional standing to challenge government
action that allegedly violated the law); cf. Diamond, 476 U.S. at 62, 106 S.Ct.
at 1703 ("The presence of a disagreement, however sharp and acrimonious it
may be, is insufficient by itself to meet Art. III' requirements."). To prevail on
the merits, Plaintiffs must prove that Defendants have acted in contravention of
the law. To reach the merits, however, Plaintiffs must first identify a concrete
injury flowing from Defendants' allegedly unlawful actions. See Valley Forge,
454 U.S. at 485, 102 S.Ct. at 765 ("Although respondents claim that the
Constitution has been violated, they claim nothing else. They fail to identify
any personal injury suffered by them as a consequence of the alleged
constitutional error, other than the psychological consequence presumably
produced by observation of conduct with which one disagrees. That is not an
injury sufficient to confer standing under Art. III...."). We therefore consider
Plaintiffs' additional claims of injury to determine whether Plaintiffs have
shown a concrete injury flowing from Defendants' allegedly unlawful
conduct.17
2. Denial of Public Participation

36

Plaintiffs also claim they are injured by Defendants' refusal to allow public
participation in the inventory process, in violation of FLPMA 201.18
Defendants counter that 201 does not require public participation in the
inventory itself.19 Further, Defendants argue that any injury suffered by
Plaintiffs from the denial of such participation is conjectural and hypothetical
since it is not yet known how Defendants will utilize the report based on the
inventory and, moreover, whether Plaintiffs will even disagree with the results
of the inventory.

37

We first look to the relevant provisions of FLPMA to determine whether

Plaintiffs have a right to participate in the inventory process.20 If we conclude
that Plaintiffs do not have such a right, then Plaintiffs' claimed injury based on
the denial of this right is without merit and they consequently lack standing to
challenge the 1996 inventory on these grounds. See Claybrook v. Slater, 111
F.3d 904, 907 (D.C.Cir.1997) ("[I]f the plaintiff's claim has no foundation in
law, he has no legally protected interest and thus no standing to sue."); Arjay
Assocs., Inc. v. Bush, 891 F.2d 894, 898 (Fed.Cir.1989) ("We hold that
appellants lack standing because the injury they assert is to a nonexistent
right...."). If, however, we conclude that FLPMA does provide for public
participation during the inventory process, we must then decide whether denial

of this right constitutes an injury for standing purposes and, further, whether the
denial of public participation at this point constitutes a final agency action ripe
for review.
38

As authority to conduct the 1996 inventory, Defendants rely on FLPMA 201,

which provides:

39

The Secretary shall prepare and maintain on a continuing basis an inventory of

all public lands and their resource and other values (including, but not limited
to, outdoor recreation and scenic values), giving priority to areas of critical
environmental concern. This inventory shall be kept current so as to reflect
changes in conditions and to identify new and emerging resource and other
values. The preparation and maintenance of such inventory or the identification
of such areas shall not, of itself, change or prevent change of the management
or use of public lands.

40

... [T]he Secretary shall ... provide State and local governments with data from
the inventory for the purpose of planning and regulating the uses of nonFederal lands in proximity of such public lands.

41

43 U.S.C. 1711. The district court concluded that even assuming Defendants
have authority under 201 to conduct the inventory, "it appears to be contrary
to law that such an effort can be made without public involvement."

42

To determine whether FLPMA requires public participation during the

inventory process, we look first to the language of the relevant statutory
provisions. See Russello v. United States, 464 U.S. 16, 20, 104 S.Ct. 296, 29899, 78 L.Ed.2d 17 (1983). "If the statutory language is unambiguous, in the
absence of a clearly expressed legislative intent to the contrary, that language
must ordinarily be regarded as conclusive." Id. (internal quotations omitted).

43

FLPMA 201 is entitled "Continuing inventory and identification of public

lands; preparation and maintenance." 43 U.S.C. 1711. Section 201 is the first
section in a subchapter entitled "Land Use Planning and Land Acquisition and
Disposition." FLPMA 202, entitled "Land use plans," sets forth the process
for the development, maintenance, and revision of land use plans by the
Secretary. Id. 1712. Section 202 is replete with requirements for public
participation.21 Unlike 202, however, 201 on its face contains no such
requirement. " '[W]here Congress includes particular language in one section of
a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion.' " Brown v. Gardner, 513 U.S. 115, 120, 115 S.Ct. 552,
556, 130 L.Ed.2d 462 (1994) (quoting Russello, 464 U.S. at 23, 104 S.Ct. at
300-01); cf. United States v. Granderson, 511 U.S. 39, 63, 114 S.Ct. 1259,
1272, 127 L.Ed.2d 611 (1994) (Kennedy, J., concurring in the judgment) ("The
presumption [that Congress acts intentionally and purposely in the disparate
inclusion or exclusion] loses some of its force when the sections in question are
dissimilar and scattered at distant points of a lengthy and complex
enactment.").
44

Plaintiffs argue 201 must be read in conjunction with 202 and that public
participation must therefore be provided throughout the land use planning
process, which they assert includes the inventory. Although 201 and 202 are
certainly related in that the provisions of both sections are utilized in the overall
land use planning process, the sections have different purposes and different
requirements. Section 201 provides for a continuing inventory and
identification of the public lands, whereas 202 addresses the development,
maintenance, and revision of land use plans. The public participation
requirements of 202 apply only when the Secretary is making decisions
regarding land use plans, i.e., when the Secretary is making decisions directly
affecting the actual management of the public lands. Section 202's requirements
do not apply when the Secretary is merely conducting an inventory of public
lands under the authority of 201, an inventory which, according to the plain
language of 201, shall not affect the management or use of the public lands.22
We have found nothing to suggest that any time the Secretary conducts an
inventory under 201, he necessarily engages in land use planning under 202.
The plain language of 201 belies this suggestion: the Secretary is legislatively
directed by 201 to maintain "on a continuing basis" an inventory of the public
lands, which must be "kept current so as to reflect changes in conditions and to
identify new and emerging resource and other values." 43 U.S.C. 1711(a).

45

Though Plaintiffs urge otherwise, the 1996 inventory cannot be characterized as

a "land use plan," "land use program," "land use regulation," or "land use
decision," requiring public participation under 202. For example, the
regulations under 202 describe a "land use plan" as a written document which
addresses eight factors23 and which is "designed to guide and control future
management actions and the development of subsequent, more detailed and
limited scope plans for resources and uses." 43 C.F.R. 1601.0-5(k), 1601.02. Section 201, on the other hand, explicitly provides that "[t]he preparation and
maintenance of [an] inventory ... shall not, of itself, change or prevent change of
the management or use of public lands." 43 U.S.C. 1711(a). This express
limitation on the consequences of conducting an inventory supports Defendants'
contention that neither the inventory nor the report based on the inventory make

any decisions concerning the management or use of the public lands.

46

Defendants have consistently maintained that once the Secretary reviews the
report based on the 1996 inventory, the Secretary will make the report public
and determine what further action, if any, will be taken. Defendants have
further acknowledged that if they later decide to consider amending the land
use plan to manage lands included in the inventory as WSAs, they will be
required to comply with NEPA and FLPMA 202, thereby affording Plaintiffs
full public participation rights.24 If Defendants amend the plan without
allowing Plaintiffs to participate in the process, Plaintiffs may bring a claim to
set aside the amendment. See National Parks & Conservation Ass'n v. FAA,
998 F.2d 1523, 1529-31, 1533 (10th Cir.1993) (setting aside land use plan
amendment because BLM failed to give sufficient notice and comment).

47

If Defendants later decide to recommend wilderness legislation for the lands

being inventoried, they will be required to comply with NEPA, which provides
opportunities for public comment. See, e.g., NEPA 102, 42 U.S.C. 4332; 40
C.F.R. 1506.6, 1506.8. If Defendants fail to comply with NEPA, Plaintiffs
may bring suit at the appropriate time. See Committee to Save the Rio Hondo
v. Lucero, 102 F.3d 445 (10th Cir.1996) (holding plaintiffs had standing to
challenge Forest Service decision which was allegedly made without
complying with NEPA); Trustees for Alaska v. Hodel, 806 F.2d 1378 (9th
Cir.1986) (enjoining government from submitting report to Congress because
government failed to comply with public participation requirements of NEPA).
Further, if, as Plaintiffs fear, a report based on the inventory is given directly to
Congress, bypassing any public participation at the local level, Congress will
certainly not be bound by the report, as it has complete discretion in designating
public lands as wilderness.25

48

This court therefore concludes FLPMA 201 does not require public
participation during the inventory process. Plaintiffs' claim that they are injured
by the denial of public participation with respect to the 1996 inventory is
consequently without merit.26 Plaintiffs therefore have no standing to challenge
the inventory based on this alleged injury. See Claybrook, 111 F.3d at 907;
Arjay, 891 F.2d at 898.

49

3. Imposition of a Wilderness Management Standard

50

Plaintiffs further allege that Defendants have been unlawfully imposing a de

facto wilderness management standard on non-WSA public lands included in
the H.R. 1500 and H.R. 1745 wilderness bills27 as a result of a November 1993

letter from the Secretary to the BLM Utah State Director.28 In claiming that
Defendants are imposing a "de facto wilderness management standard,"
Plaintiffs argue that Defendants are essentially imposing an IMP standard,
which is used to ensure the continuing suitability of public lands for
designation as wilderness. Plaintiffs assert that only those lands designated as
WSAs pursuant to FLPMA 603 or FLPMA 202 may be managed under an
IMP standard.29 According to Plaintiffs, application of the IMP standard
precludes many uses on federal lands, which in turn limits access to and uses of
state trust lands surrounded by the particular federal lands ("inheld" state trust
lands).
51

Plaintiffs assert that Defendants' imposition of a wilderness management

standard on non-WSA public lands violates FLPMA. Plaintiffs argue that to
lawfully impose such a standard, the lands must be formally designated as
WSAs and the relevant land use plan must be amended. Further, in amending
the land use plan, Defendants must comply with the public participation
requirements of FLPMA 202. Plaintiffs allege they have been injured by the
imposition of the wilderness management standard because it impairs their
ability to lease inheld state trust lands for grazing and mineral development.

52

To satisfy the traceability requirement of constitutional standing, Plaintiffs

must show there is a "causal connection between the injury and the conduct
complained of--the injury has to be 'fairly ... trace[able] to the challenged action
of the defendant.' " Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. at 2136
(alteration and ellipses in original) (quoting Simon v. Eastern Ky. Welfare
Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450
(1976)). Even if Plaintiffs do show an injury-in-fact with a causal nexus to the
1996 inventory, this alone is insufficient to establish Article III standing.
Plaintiffs must also show "there is at least a 'substantial likelihood that the
relief requested will redress the injury claimed.' " Baca v. King, 92 F.3d 1031,
1036 (10th Cir.1996) (quoting Duke Power Co. v. Carolina Envtl. Study
Group, Inc., 438 U.S. 59, 75 n. 20, 98 S.Ct. 2620, 2631 n. 20, 57 L.Ed.2d 595
(1978) (internal quotations omitted)).

53

Significantly, Plaintiffs do not allege that Defendants' initial imposition of the

de facto wilderness management standard was in any way related to
Defendants' decision to conduct the inventory. Rather, Plaintiffs allege the
standard was imposed in response to a letter written by the Secretary in 1993,
three years before the Secretary undertook the inventory. Therefore, Plaintiffs'
alleged injury is not fairly traceable to the 1996 inventory nor is it likely to be
redressed by enjoining the inventory. Accordingly, Plaintiffs have no standing
to challenge the inventory based on the alleged imposition of a de facto

wilderness management standard.30

54

While not premising their challenge to the 1996 inventory on the initial
imposition of a de facto wilderness management standard, Plaintiffs do make a
failed attempt to link the two prospectively. Specifically, Plaintiffs allege that
Defendants will formalize the wilderness management standard as a result of
the inventory.31 Plaintiffs also allege that, "[i]n light of Defendants' past
actions," Defendants will fail to provide for notice and comment when they
formally adopt the management standard.

55

To satisfy the injury-in-fact requirement of constitutional standing, the burden

is on Plaintiffs to show they are "immediately in danger of sustaining some
direct injury" as a result of the 1996 inventory and that the threat of injury is
"real and immediate, not conjectural or hypothetical." City of Los Angeles v.
Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)
(internal quotations omitted). Plaintiffs' bald allegation that Defendants will at
some time formally manage the lands included in the inventory under the IMP,
and that they will do so without public involvement in violation of FLPMA, is
not sufficient to satisfy this burden. Their claimed injury is purely speculative,
in that it is based solely on their assertion that Defendants will violate the law
at some undetermined time in the future. Consequently, their claim does not
satisfy the case or controversy requirements of Article III. See Defenders of
Wildlife, 504 U.S. at 564 n. 2, 112 S.Ct. at 2138 n. 2 (discussing "imminency"
requirement of constitutional standing and stating that purpose "is to ensure that
the alleged injury is not too speculative for Article III purposes--that the injury
is 'certainly impending' " (internal quotations omitted)).

56

If Defendants do in fact amend the land use plan to manage the lands included
in the inventory as WSAs under the IMP, and do so without the public
participation required by FLPMA 202, Plaintiffs may challenge the plan
amendment at that time. See supra Part II.B.2. If Plaintiffs are then entitled to
relief, the appropriate remedy would be to enjoin the misuse of the inventory,
not its preparation. At this point, however, Plaintiffs have not suffered a
concrete, actual or imminent injury and thus have no standing to challenge the
1996 inventory on these grounds.
4. Roads

57

In their Complaint, Plaintiffs assert that the 1996 Procedures adopted for the
1996 inventory contain a different definition of "roadlessness" than the WIH,
which was adopted for the original FLPMA 603 wilderness review process.

A determination of "roadlessness" is a prerequisite to a finding of wilderness.

See FLPMA 603, 43 U.S.C. 1782(a). Plaintiffs specifically claim the 1996
Procedures exclude from consideration the following, all of which were
considered under the WIH: "(a) roads that are regularly and continuously used,
even if there is no regular mechanical maintenance; (b) roads maintained by
tools but not by mechanical means; and (c) whether there is public support for
the use of the road." As a result of the new definition of "roadlessness" utilized
by the 1996 Procedures, Plaintiffs assert that more public lands reviewed in the
1996 inventory will be considered "roadless" than under the WIH and,
consequently, more lands will be considered suitable for wilderness
designation.
58

In their Complaint, Plaintiffs allege the change in definition of "roadlessness"

violates the APA because it is an arbitrary change in interpretation of the WIH
and FLPMA. Plaintiffs claim their "interests are injured by Defendants' failure
to explain the significant changes in ... interpretation." As we have already
discussed, a generalized grievance that Defendants are acting in violation of the
law is not sufficient to afford standing. See supra Part II.B.1. To establish
standing, Plaintiffs must identify a concrete injury flowing from Defendants'
allegedly unlawful change in interpretation.

59

While far from clear, Plaintiffs apparently allege they are injured as a result of
their inability to comment on whether the particular lands included in the 1996
inventory are roadless. Plaintiffs argue that if the 1996 Procedures had used the
same definition of "roadlessness" as the WIH, the requirement to consider
public support for the use of a road would have allowed them to comment. The
WIH is not controlling, however, as it was adopted for purposes of the FLPMA
603 wilderness designation process, not for the purpose of conducting
inventories under the authority of FLPMA 201. Therefore, the WIH does not
provide Plaintiffs with a right to comment in this instance. As previously
discussed, Plaintiffs also have no right under 201 to participate in the
inventory process. See supra Part II.B.2. Again, if Defendants later rely on the
results of the inventory in amending the land use plan for the lands included in
the inventory, Defendants will be required under FLPMA 202 to provide the
public with an opportunity to comment.

60

Plaintiffs also claim that Defendants changed their road maintenance policies as
a result of their decision to conduct the 1996 inventory. In support of their
motion to preliminarily enjoin Defendants from completing the inventory,
Plaintiffs submitted several affidavits from various county officials discussing
changes to Defendants' road maintenance policies since the inventory was
commenced. Specifically, the affiants testified that Defendants revoked a

cooperative road agreement, required counties to seek permission to maintain

their own roads, and initiated trespass actions against certain counties for
routine road maintenance activities. To link the alleged change in road
maintenance policies to Defendants' decision to conduct the inventory,
Plaintiffs primarily rely on the temporal proximity of Defendants' actions to the
inventory. Plaintiffs also rely on what they term "admissions" by BLM officials
concerning the relationship between the alleged change in policy and
Defendants' decision to undertake the inventory.
61

In response, Defendants argue that neither their decision to conduct the

inventory nor the 1996 Procedures "establish, change, or even address, any
policies regarding road maintenance in Utah." Defendants particularly note the
trespass actions against the counties have not been limited to just those lands
included in the inventory: counties have also been sued for unauthorized
"destructive activities" on WSAs and National Park Service lands.

62

We first note it is questionable whether the alleged changes to road

maintenance policies can be traced to Defendants' decision to conduct the
inventory. Regardless, enjoining the inventory is not substantially likely to
redress Plaintiffs' injuries. Assuming that Defendants have changed their road
maintenance policies as a result of their decision to conduct the inventory,
enjoining Defendants from completing the inventory would not require them to
reinstate their previous road maintenance policies. To redress their injuries,
Plaintiffs would need specific relief addressing the alleged changes in road
policies, such as a judgment requiring Defendants to adhere to a specific
agreement, a declaration that Defendants improperly required county officials
to seek permission to maintain a particular road, or an injunction against a
specific trespass action. Cf. Humboldt County v. United States, 684 F.2d 1276,
1278 (9th Cir.1982) (considering county's argument that BLM's closure of two
roads was improper because county held right-of-way in the roads and because
BLM failed to comply with applicable law in closing the roads). Plaintiffs have
sought no such relief in this case. Thus, because enjoining the inventory would
not remedy Plaintiffs' claimed injuries resulting from the alleged changes to
road maintenance policies, Plaintiffs have not satisfied the redressability
requirement of constitutional standing.32 Cf. Baca, 92 F.3d at 1037 (holding
lessee of federal land lacked standing to challenge exchange of federal land for
private land because voiding the exchange was not likely to result in BLM
renewing the grazing lease, thereby redressing lessee's injury); Wyoming ex
rel. Sullivan, 969 F.2d at 881-82 (holding State lacked standing to challenge
exchange of federally owned coal for conservation easement because voiding
the exchange would not necessarily result in BLM offering the coal for
competitive leasing, thereby redressing State's injury).

5. NEPA Violation
63

Finally, Plaintiffs assert they are injured by Defendants' failure to prepare an

EIS in violation of NEPA. NEPA requires all federal agencies to "include in
every recommendation or report on proposals for legislation and other major
Federal actions significantly affecting the quality of the human environment, a
detailed statement by the responsible official" addressing certain environmental
considerations. NEPA 102, 42 U.S.C. 4332(2)(C). The term "major federal
action" "includes actions with effects that may be major and which are
potentially subject to Federal control and responsibility." 40 C.F.R. 1508.18.
The regulations to FLPMA 202 provide that "[a]pproval of a [land use] plan
is considered a major Federal action." 43 C.F.R. 1601.0-6. If a federal agency
is required to prepare an EIS and fails to do so, an action may be brought to
compel compliance with NEPA. See Committee to Save the Rio Hondo, 102
F.3d at 452 (holding environmental organization had standing to challenge
Forest Service decision which was allegedly made without complying with
NEPA).

64

Plaintiffs assert the 1996 inventory constitutes a "major federal action," thereby
requiring compliance with NEPA.33 We fail to see, however, how an inventory
of public lands constitutes a "major federal action significantly affecting the
quality of the human environment." NEPA 102, 42 U.S.C. 4332(2)(C).
FLPMA 201 expressly provides that an inventory "shall not, of itself, change
or prevent change of the management or use of public lands." 43 U.S.C.
1711(a). Further, as we have already discussed, the 1996 inventory does not
constitute an amendment to or revision of a land use plan. See supra Part II.B.2.
The inventory also cannot be characterized as a "proposal for legislation." As
previously stated, if Defendants later utilize the report based on the inventory in
recommending wilderness legislation or if they decide to amend the land use
plan, they will be required to comply with NEPA at that time. At this stage,
however, NEPA does not require preparation of an EIS. See Fund for Animals,
Inc. v. Thomas, 127 F.3d 80, 84 (D.C.Cir.1997) (holding national policy which
"maintained the substantive status quo " could not be characterized as a "major
federal action"); Sabine River Auth. v. U.S. Dep't of Interior, 951 F.2d 669, 679
(5th Cir.1992) (holding federal government's "acquisition of negative easement
which by its terms prohibits any change in the status quo does not amount to [a]
'major Federal action[ ]' " (second alteration in original)). Therefore, Plaintiffs'
claim that they are injured by Defendants' failure to prepare an EIS for the
1996 inventory is without merit and does not constitute a foundation upon
which to premise standing. Cf. Claybrook, 111 F.3d at 907 ("[I]f the plaintiffs'
claim has no foundation in law, he has no legally protected interest and thus no
standing to sue."); Arjay, 891 F.2d at 898 ("We hold that appellants lack

standing because the injury they assert is to a nonexistent right....").

6. Summary
65

Plaintiffs have failed to identify a concrete, actual or imminent injury-in-fact

which is fairly traceable to the 1996 inventory and likely to be redressed by a
favorable decision. As a consequence, the power of judicial review does not
now extend to the 1996 inventory conducted by the executive branch. In light
of our conclusion that Plaintiffs lack constitutional standing, we need not
address whether prudential limitations or the statutory requirements for judicial
review under the APA would also preclude review of Plaintiffs' claims. See
Baca, 92 F.3d at 1037. The district court's order enjoining Defendants from
completing the inventory is therefore vacated. We remand to the district court
to dismiss those causes of action related directly to the inventory, i.e., Plaintiffs'
first, second, third, fourth, fifth, seventh, and eighth causes of action.

C. Standing to Challenge De Facto Wilderness Management

66
67

We next consider whether Plaintiffs have standing to directly challenge

Defendants' alleged imposition of a de facto wilderness management standard
on non-WSA federal lands, in violation of FLPMA. In determining whether
Plaintiffs have standing to bring this claim, their sixth cause of action, we apply
the motion to dismiss standard.34

68

As previously discussed, Plaintiffs allege that Defendants began imposing the

de facto management standard in response to a letter written by the Secretary in
1993, three years before the Secretary announced his decision to conduct the
1996 inventory. See supra Part II.B.3. Plaintiffs' claim that Defendants are
currently imposing such a standard is therefore not directly related to
Defendants' decision to conduct the 1996 inventory. Accordingly, Plaintiffs' de
facto management cause of action is not foreclosed by our decision that
Plaintiffs lack standing to challenge the inventory. To the extent Plaintiffs base
their standing to challenge the 1996 inventory on this cause of action, however,
we have considered and rejected their argument.

69

Plaintiffs essentially argue that imposition of the de facto wilderness

management standard amounts to an "informal" amendment to the land use
plan. As previously discussed, FLPMA 202, which governs land use plans,
provides for public participation throughout the land use planning process,
including amendments to land use plans. See supra Part II.B.2. Plaintiffs assert
they were denied an opportunity to comment on the amendment and allege they

have been injured because imposition of the standard impairs their ability to
lease their state trust lands.
70

In support of their claim that Defendants are currently imposing a de facto

wilderness management standard, Plaintiffs reference only a nebulous statement
made by the Secretary in 1993.35 Importantly, Plaintiffs allege no specific
interferences with their state trust lands resulting from such management.
Before the district court, Plaintiffs submitted an affidavit from the Director of
the State Trust Lands Administration to support their motion for a preliminary
injunction to enjoin the inventory. This affidavit, however, does not support
Plaintiffs' allegation that Defendants are currently imposing a de facto
wilderness management standard, but rather discusses generally the effects on
inheld state trust lands when surrounding federal lands are managed as WSAs
under the IMP or are designated as wilderness.

71

Nevertheless, because general allegations of injury based on a legally

cognizable right suffice at this stage, and because we must accept as true
Plaintiffs' factual allegations, we conclude that Plaintiffs do have standing to
bring their de facto management claim.36 Courts have recognized that an
individual may enforce procedural rights "so long as the procedures in question
are designed to protect some threatened concrete interest of his that is the
ultimate basis of his standing." Defenders of Wildlife, 504 U.S. at 573 n. 8, 112
S.Ct. at 2143 n. 8. Plaintiffs have alleged a violation of their procedural rights
under FLPMA and have alleged they are harmed by Defendants' imposition of
the de facto wilderness management standard. Plaintiffs have requested that
Defendants be enjoined from imposing the de facto standard at least until they
comply with FLPMA by formally amending the land use plan and providing for
notice and comment. Thus, Plaintiffs' injuries are redressable by a favorable
decision.37

72

Plaintiffs have also satisfied the standing requirements of the APA: Defendants'
alleged imposition of the de facto wilderness management standard constitutes
a final agency action, and Plaintiffs' claims fall within the zone of interests
protected by FLPMA. See Catron County, 75 F.3d at 1434 (holding APA
standing requirements satisfied where county alleged Secretary failed to comply
with NEPA when designating critical habitat). We therefore conclude Plaintiffs
have standing to pursue their de facto management cause of action. Their sole
available remedy, as requested in their Complaint, is an injunction prohibiting
the alleged imposition of the de facto wilderness management standard until
and unless Defendants comply with FLPMA.

73

We emphasize, however, that our decision is limited to the threshold issue of

whether Plaintiffs' claim can survive a motion to dismiss. This court expresses
no view on whether Plaintiffs' claim could survive a motion for summary
judgment or whether their claim should succeed on the merits. We also note
that if Defendants move for a summary judgment, Plaintiffs "can no longer rest
on such 'mere allegations' [of injury], but must 'set forth' by affidavit or other
evidence 'specific facts' " in support of their claim. Defenders of Wildlife, 504
U.S. at 561, 112 S.Ct. at 2136-37 (quoting Fed.R.Civ.P. 56(e)).
III. CONCLUSION
74

This court concludes Plaintiffs do not have standing to challenge the 1996
inventory. Due to our resolution of the standing issue, we need not address
Defendants' ripeness argument nor need we address Defendants' argument that
the district court abused its discretion in granting Plaintiffs' motion for a
preliminary injunction.

75

Because Plaintiffs lack standing to challenge the 1996 inventory, we VACATE

the preliminary injunction entered by the district court enjoining Defendants
from further work on the inventory and REMAND to the district court with
instructions to DISMISS the seven causes of action directly related to the
inventory. Finally, we REMAND to the district court for further consideration
the one cause of action not directly related to the inventory, Plaintiffs' sixth
cause of action, claiming that Defendants are currently imposing a de facto
wilderness management standard on non-WSA public lands, in violation of
FLPMA.38

Honorable Vicki Miles-LaGrange, District Judge for the Western District of

Oklahoma, sitting by designation

The definition of "wilderness" is taken from the Wilderness Act of 1964, which
defines "wilderness" as
an area where the earth and its community of life are untrammeled by man,
where man himself is a visitor who does not remain. An area of wilderness is
further defined to mean ... an area of undeveloped Federal land retaining its
primeval character and influence, without permanent improvements or human
habitation, which is protected and managed so as to preserve its natural
conditions and which (1) generally appears to have been affected primarily by
the forces of nature, with the imprint of man's work substantially unnoticeable;
(2) has outstanding opportunities for solitude or a primitive and unconfined
type of recreation; (3) has at least five thousand acres of land or is of sufficient

size as to make practicable its preservation and use in an unimpaired condition;

and (4) may also contain ecological, geological, or other features of scientific,
educational, scenic, or historical value.
16 U.S.C. 1131(c).
2

The lands subject to the FLPMA 603 review process are managed under the
IMP until Congress designates the lands as wilderness or the lands are released
from further wilderness consideration. See Rocky Mountain Oil & Gas Ass'n v.
Watt, 696 F.2d 734, 740 (10th Cir.1982) (discussing 603 wilderness review
process)

See, e.g., Decision on Protests, 46 Fed.Reg. 15,332 (1981); Utah Wilderness

Ass'n, 72 I.B.L.A. 125 (1983) (appealing BLM decision involving
approximately 925,000 acres of public lands); Decision on Reassessment of
Units Set Aside and Remanded by I.B.L.A., 48 Fed.Reg. 46,858 (1983); Utah
Wilderness Ass'n, 86 I.B.L.A. 89 (1985) (appealing BLM's reassessment with
respect to approximately 250,000 acres)

In 1995, Utah Representatives James Hansen and Enid Greene sponsored H.R.
1745, which would have designated approximately 2.1 million acres of federal
lands in Utah as wilderness. Utah Senators Orrin Hatch and Robert Bennett
introduced a similar bill, S. 884, in the Senate. Various environmental groups
supported H.R. 1500, which would have designated approximately 5.7 million
acres as wilderness. H.R. 1500, which has been introduced every year since
1989, was sponsored in 1995 by New York Representative Maurice Hinchey.
None of the 1995 bills passed. In 1997, Utah Representative Chris Cannon
sponsored H.R.1952, which would designate approximately 2.1 million acres as
wilderness. H.R. 1500 was again introduced by Representative Hinchey, along
with its Senate counterpart, S. 773, sponsored by Illinois Senator Richard
Durbin. To date, none of the 1997 bills have passed

According to Robert V. Abbey, project leader for the 1996 inventory, the
inventory was to include fieldwork, review of resource data from recent aerial
photography, and review of information generated in prior federal and state
reviews and public hearings on the public lands in Utah

See Letter from James V. Hansen, Orrin G. Hatch, & Robert F. Bennett to
Bruce Babbitt, Secretary of the Interior (Aug. 1, 1996)

A party seeking a preliminary injunction must show the following: (1) that it
will suffer an irreparable injury absent an injunction; (2) that the threatened
injury outweighs the harm an injunction may cause the opposing party; (3) that
an injunction would not be adverse to the public interest; and (4) that it is

substantially likely to prevail on the merits. See Elam Constr., Inc. v. Regional
Transp. Dist., 129 F.3d 1343, 1346-47 (10th Cir.1997)
8

The court did not address Defendants' claim that the case was not ripe for
review

We note that approximately 45 days after oral argument in the appeal of this
case, Plaintiffs filed a Motion to Remand to the District Court for the
Jurisdictional Issues of Standing, Ripeness, and Final Agency Action. In
arguing that this court should remand to the district court, Plaintiffs noted they
were granted leave to amend and supplement the Complaint to add an ultra
vires claim, which affected the standing analysis. Plaintiffs also argued they
had uncovered documents during formal discovery which provided additional
support for their allegations of injury-in-fact. Plaintiffs additionally noted they
had recently responded to Defendants' motion to dismiss in the district court,
which was their first opportunity to fully address the standing issue. Defendants
opposed the motion, arguing the standing issue had been fully briefed and
argued in this appeal. This court denied Plaintiffs' motion. Plaintiffs' amended
Complaint is not before us. We therefore consider only the allegations in
Plaintiffs' original Complaint

10

Section 10(a) of the APA provides: "A person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C.
702. The APA further provides:
Agency action made reviewable by statute and final agency action for which
there is no other adequate remedy in a court are subject to judicial review. A
preliminary, procedural, or intermediate agency action or ruling not directly
reviewable is subject to review on the review of the final agency action.
Id. 704.

11

"Neither the Administrative Procedure Act, nor any other congressional

enactment, can lower the threshold requirements of standing under Art. III."
Valley Forge Christian College v. Americans United for Separation of Church
& State, Inc., 454 U.S. 464, 487 n. 24, 102 S.Ct. 752, 766-67 n. 24, 70 L.Ed.2d
700 (1982)

12

In opposing Plaintiffs' motion for a preliminary injunction in the district court,

Defendants did not argue that Plaintiffs lacked standing because they failed to
show an injury-in-fact from the 1996 inventory. Defendants did, however,
argue that Plaintiffs failed to show some "final agency action" for purposes of
proceeding under the APA. Closely related to the injury-in-fact argument,

Defendants also argued that Plaintiffs had not shown they would suffer an
"irreparable" injury in the absence of an injunction
Standing is "jurisdictional in nature," and "we are obligated to satisfy ourselves
as to our own jurisdiction at every stage of the proceeding." Alexander v.
Anheuser-Busch Cos., 990 F.2d 536, 538 (10th Cir.1993). Therefore,
Defendants' failure to argue before the district court that Plaintiffs lacked
standing because they could show no injury-in-fact does not bar our
considering the argument at this time. See, e.g., Joslin v. Secretary of Dep't of
Treasury, 832 F.2d 132, 134 (10th Cir.1987); Citizens Concerned for
Separation of Church & State v. City & County of Denver, 628 F.2d 1289, 1301
(10th Cir.1980).
13

In their briefs on appeal, both parties have focused on the 1996 inventory and
have generally treated all the causes of action as flowing from the inventory. A
close reading of Plaintiffs' Complaint, however, reveals that Plaintiffs' sixth
cause of action, their claim that Defendants are currently imposing a de facto
wilderness management standard on non-WSA federal lands in violation of
FLPMA, does not stem from Defendants' decision to conduct the inventory.
The remaining seven causes of action, however, all relate directly to the 1996
inventory
The first cause of action challenges the inclusion of state trust lands in the lands
being inventoried. In the second cause of action, Plaintiffs claim that
Defendants have unlawfully singled out the State of Utah for "unique and
special study." In the third cause of action, Plaintiffs claim that Defendants do
not have authority to conduct the inventory, and in the fourth cause of action,
Plaintiffs assert that Defendants have violated FLPMA by failing to allow
public participation in the inventory process. The fifth cause of action
challenges the promulgation of the 1996 Procedures. In the seventh cause of
action, Plaintiffs claim that because Defendants arbitrarily changed their
interpretation of FLPMA and the WIH, both Defendants' decision to conduct
the inventory and the 1996 Procedures are arbitrary and capricious and should
thus be set aside. Finally, in the eighth cause of action, Plaintiffs assert the
inventory constitutes a major federal action that may significantly affect the
environment, necessitating preparation of an EIS.

14

Plaintiffs cite no authority for this statement

15

In particular, Plaintiffs claim they are injured because (1) Defendants lack
authority to include state trust lands in the 1996 inventory; (2) Defendants have
improperly singled out the State of Utah for "unique and special study"; (3)
Defendants lack authority to conduct the 1996 inventory; and (4) Defendants

arbitrarily changed their interpretation of FLPMA and the WIH

16

In arguing they are likely to prevail on the merits, which is a requirement for
obtaining a preliminary injunction, Plaintiffs do maintain their contention that
Defendants lack authority to conduct the 1996 inventory and to include state
trust lands in the inventory

17

On appeal, Defendants primarily rely on FLPMA 201 as providing the

necessary authority to conduct the 1996 inventory, but also assert they have
authority under FLPMA 603. Just prior to this litigation, however, Defendants
explicitly rejected 603 as providing the necessary authority to conduct the
inventory. See, e.g., Letter from Bruce Babbitt, Secretary of the Interior, to
James V. Hansen, Chairman, Subcommittee on National Parks, Forests, and
Public Lands 2 (July 24, 1996) ("I also agree with you that FLPMA's section
603 no longer provides authority to inventory BLM land in Utah for wilderness
values."); BLM, U.S. Dep't of the Interior, Utah Wilderness Review Procedures
(1996) [hereinafter 1996 Procedures] (stating "wilderness review mandate" of
603 "has been completed" and identifying, inter alia, 201 as authority for
conducting the 1996 inventory). Similarly, in other wilderness inventory
contexts, such as inventories of newly acquired public lands, BLM has
consistently relied on FLPMA 201 and 202, not 603, as providing the
necessary authority to conduct the inventories. See, e.g., Wilderness Society,
119 I.B.L.A. 168, 170-72 (1991) (noting "second inventory" of lands
previously inventoried under 603 and inventory of adjacent newly acquired
parcels was completed under 201, not 603); Amendment of Notice of Intent,
56 Fed.Reg. 40,341 (1991) (announcing intent to prepare land use plan and to
inventory newly acquired public lands for wilderness values, and citing 202
as authority)
In proceedings before the district court, Defendants relied solely on 201 as
providing authority to conduct the inventory. In their Memorandum in
Opposition to Motion for a Temporary Restraining Order and Preliminary
Injunction, Defendants noted that "[w]hile letters from the Secretary and the
State Director have cited various provisions of FLPMA for the authority to
undertake the re-inventory, section 201(a) provides the authority necessary."
During the hearing on Plaintiffs' motion for a preliminary injunction, the
district court questioned Defendants' authority to conduct the inventory. After
the hearing, Defendants requested leave to submit supplemental memoranda on
the Secretary's authority under 201 to conduct the inventory. In their letter
accompanying the request, Defendants stated that "[t]he Secretary of Interior
has authority under FLPMA independent of 603 to consider lands for
wilderness review." The district court did not respond to Defendants' request.

The 1996 inventory focuses on specific lands previously inventoried under

603 and is limited to determining whether these lands are roadless and possess
wilderness characteristics. See 1996 Procedures, supra. The inventory will not
address the suitability of the lands for management as wilderness. See id. In
determining whether public lands are suitable for designation as wilderness,
BLM considers "all values, resources, and uses of the lands," not just whether
the lands are roadless and possess wilderness characteristics. See, e.g., WIH,
supra, at 3. Section 603 envisions a much more comprehensive process
(including interim wilderness management of WSAs, suitability analysis, and
wilderness recommendations to the President and Congress) than that
implemented by the 1996 inventory.
We agree with Plaintiffs that the Secretary's express rejection of 603 in
actions prior to this appeal renders Defendants' reliance on 603 before this
court questionable. In addition, Defendants' sole reliance on 201 before the
district court suggests that 603 was merely an afterthought on appeal. We
therefore reject Defendants' claim that they were conducting the inventory
under the authority of 603 and analyze the remainder of Plaintiffs' alleged
injuries as though Defendants were proceeding under 201. Cf. Olenhouse v.
Commodity Credit Corp., 42 F.3d 1560, 1575, 1577 (10th Cir.1994)
(discussing whether agency action was "arbitrary and capricious" and rejecting
"[a]fter-the-fact rationalization by counsel in briefs or argument").
18

Plaintiffs proceeded before the district court on alternative theories. They first
alleged that Defendants lacked statutory authority to conduct the 1996
inventory. As noted in the preceding section, Plaintiffs have appropriately
abandoned the contention that they are automatically entitled to standing
merely because they allege Defendants are without authority to conduct the
inventory. In the alternative, Plaintiffs alleged inter alia that even if the
inventory was proper under FLPMA 201, the public had a right under
FLPMA to participate in the inventory. This alternative argument assumes that
Defendants have authority under 201 to conduct the inventory. For purposes
of analyzing Plaintiffs' alleged injuries, we also assume, though we do not
decide, that Defendants do have authority under 201 to conduct the 1996
inventory

19

We note that BLM representatives attended several meetings with various state
and local officials concerning the 1996 inventory and, although it did not solicit
information, BLM did "welcome any information" pertinent to the inventory.
Letter from G. William Lamb, State Director, BLM, to Mark O. Walsh, Utah
Association of Counties 2 (Sept. 18, 1996)

20

Whether FLPMA grants public participation rights to Plaintiffs in the inventory

process is a legal question. This court need not accept Plaintiffs' allegation that
they are entitled to public participation. See Hackford v. Babbitt, 14 F.3d 1457,
1465 (10th Cir.1994) (noting that in determining standing, court is "not bound
by conclusory allegations, unwarranted inferences, or legal conclusions");
Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981) (noting that
in determining standing, court does not "necessarily assume the truth of legal
conclusions merely because they are cast in the form of factual allegations");
cf. Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995) (noting that when
reviewing dismissal for lack of subject matter jurisdiction, plaintiff "may not
rest merely on 'unsupported conclusions or interpretations of law' " (quoting
Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st
Cir.1993))
We recognize that in cases when the standing inquiry overlaps with the merits
of the plaintiff's claim, courts have been inconsistent in their willingness to
resolve legal questions in determining standing. See Taylor v. FDIC, 132 F.3d
753, 767-68 (D.C.Cir.1997) (discussing differing treatment). In this case,
however, we conclude it is appropriate to resolve the legal question of whether
FLPMA provides for public participation to the extent necessary to determine
whether Plaintiffs have suffered an injury-in-fact for standing purposes. Cf. id.
at 766-68 (disposing of reinstatement claim on standing grounds after rejecting
plaintiffs' assertion that voluntary departure constituted a constructive
discharge); Claybrook v. Slater, 111 F.3d 904, 906-09 (D.C.Cir.1997) (holding
plaintiff lacked standing after concluding the statute upon which plaintiff relied
in bringing her claim did not impose legal duty plaintiff claimed it did); Arjay
Assocs., Inc. v. Bush, 891 F.2d 894, 898 (Fed.Cir.1989) (holding plaintiffs
lacked standing because "the injury they assert is to a nonexistent right to
continued importation of a Congressionally excluded product"); see also
Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226
(D.C.Cir.1993) ("Appellants ... overlook the character of the questions before
the district court when an agency action is challenged. The entire case on
review is a question of law, and only a question of law. And because a court
can fully resolve any purely legal question on a motion to dismiss, there is no
inherent barrier to reaching the merits at the 12(b)(6) stage.").
21

The relevant public participation provisions of FLPMA 202 are as follows:

(a) Development, maintenance, and revision by Secretary--The Secretary shall,
with public involvement ... develop, maintain, and, when appropriate, revise
land use plans....
....

(c) Criteria for development and revision--In the development and revision of
land use plans, the Secretary shall-....
(9) ... coordinate the land use inventory, planning, and management activities of
or for such lands with the land use planning and management programs ... of
the States and local governments within which the lands are located.... In
implementing this directive, the Secretary ... shall provide for meaningful
public involvement of State and local government officials ... in the
development of land use programs, land use regulations, and land use decisions
for public lands, including early public notice of proposed decisions which may
have a significant impact on non-Federal lands....
....
(f) Procedures applicable to formulation of plans and programs for public land
management--The Secretary shall allow an opportunity for public involvement
and by regulation shall establish procedures, including public hearings where
appropriate, to give Federal, State, and local governments and the public,
adequate notice and opportunity to comment upon and participate in the
formulation of plans and programs relating to the management of the public
lands.
43 U.S.C. 1712(a), (c)(9), (f). The regulations to FLPMA 202 set forth
specific requirements for public participation during the preparation,
amendment, and revision of land use plans. See, e.g., 43 C.F.R. 1610.2,
1610.4.
22

Defendants have not argued on appeal nor did they argue before the district
court that they were conducting the 1996 inventory under the authority of
FLPMA 202. We note, however, that various documents in the record contain
oblique references by Defendants to 202 in the context of their authority to
conduct the inventory. Nevertheless, Defendants have never asserted that they
are currently amending the land use plan for the lands included in the
inventory. Defendants have acknowledged that amending the land use plan for
these lands is a "possible next step[ ]," but have noted this is only one
possibility. Letter from Bruce Babbitt, Secretary of the Interior, to James V.
Hansen, Chairman, Subcommittee on National Parks, Forests, and Public Lands
2-3 (July 24, 1996). Another possibility stated by Defendants is that they may
formulate, through a legislative NEPA process, new wilderness
recommendations to Congress. See id. Defendants have consistently
acknowledged that if they do in fact amend the land use plan in the future, they
will be required to comply with the public participation requirements of 202

23

These eight factors are: (1) land areas for specific use, designation, or transfer;
(2) allowable resource uses; (3) resource condition goals and objectives; (4)
program constraints; (5) need for more specific and detailed plans; (6) support
action necessary to achieve goals; (7) general implementation sequences of
planned actions; and (8) intervals and standards for monitoring and evaluating
the plan. See 43 C.F.R. 1601.0-5(k)

24

Although FLPMA 202 requires the Secretary to rely on the inventory of the
public lands when revising a land use plan, the inventory is only one of nine
factors the Secretary is directed to consider. See 43 U.S.C. 1712(c). Further,
nothing in the statute or the regulations indicates that Plaintiffs would be
precluded from challenging the results of the inventory if those results are
utilized in proposing a revision to a land use plan

25

Any future injury Plaintiffs may suffer from the submission of the inventory
report directly to Congress is speculative at best. As the district court itself
recognized, "it is not presently known what the results of the reinventory will
be or for that matter whether the Plaintiffs will disagree with those results."
Given this uncertainty and the uncertainty of what Congress might do, if
anything, with the report, we are left with "a conjecture based on speculation
that is bottomed on surmise." Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877,
882 (10th Cir.1992) (holding Wyoming lacked standing to challenge Secretary's
exchange of federally owned coal for easement)

26

Plaintiffs also apparently argue they have been injured because they were not
allowed to comment on the adoption of the 1996 Procedures, in violation of
FLPMA and the APA. It is unclear upon which provision of FLPMA Plaintiffs
base their claim. In their Complaint, Plaintiffs reference both FLPMA 309
and FLPMA 310. Neither of these provisions provide a basis for their claim
Section 309 provides that
the Secretary, by regulation, shall establish procedures, including public
hearings where appropriate, to give the Federal, State, and local governments
and the public adequate notice and an opportunity to comment upon the
formulation of standards and criteria for, and to participate in, the preparation
and execution of plans and programs for, and the management of, the public
lands.
43 U.S.C. 1739(e). As previously discussed, the 1996 inventory is not a land
use "plan" or "program" and does not affect the management of the public
lands. Therefore, Plaintiffs' claim that they were denied an opportunity to
comment on the 1996 Procedures under 309 is without merit.

Section 310 provides the Secretary with general rule-making authority to carry
out the purposes of FLPMA and requires the Secretary to promulgate rules and
regulations in accordance with the rule-making provisions of the APA. See 43
U.S.C. 1740. To the extent Plaintiffs generally allege they were injured
because they were denied an opportunity to comment on the 1996 Procedures
under the APA, their argument is unpersuasive. Plaintiffs have not identified a
concrete injury resulting from the alleged procedural violation, but have merely
asserted their "interests in ensuring that Defendants employ public procedures
and standards are injured by Defendants' recent failure to do so." "This abstract,
generalized 'injury' is not sufficient to afford standing." Animal Legal Defense
Fund, Inc. v. Glickman, 130 F.3d 464, 471 (D.C.Cir.1997) (holding allegation
that Secretary failed to comply with notice and comment provisions of APA
was insufficient to afford standing because plaintiff "failed to make the case
that it has suffered a concrete injury as distinguished from the abstract
procedural right to submit comments").
Moreover, it is difficult to understand how Plaintiffs could be injured from the
allegedly improper promulgation of the procedures used to conduct the
inventory when they cannot identify a concrete injury from the inventory itself.
27

H.R. 1500 and H.R. 1745 were introduced before the 104th Congress in 1995.
H.R. 1500 would have designated approximately 5.7 million acres of federal
lands in Utah as wilderness, whereas H.R. 1745 would have designated
approximately 2.1 million acres as wilderness. Neither bill passed. See supra
note 4 (discussing wilderness bills). The 1996 inventory includes all public
lands identified in the H.R. 1500 and H.R. 1745 wilderness bills. See 1996
Procedures, supra

28

Plaintiffs quote the following language from the Secretary's letter: "I want you
to make sure that any BLM management decisions affecting potential
wilderness on BLM lands in Utah, whether within formally designated WSA's
or not, are given your careful attention."

29

The IMP was initially adopted to guide the management of the public lands
subject to the FLPMA 603 process. See supra Part I.A. According to
Plaintiffs, the IMP has been extended by policy to lands designated as WSAs
pursuant to FLPMA 202

30

Whether Plaintiffs have standing to directly challenge Defendants' alleged

imposition of a de facto wilderness management standard is discussed in infra
Part II.C. At this juncture, we merely conclude that Plaintiffs do not have
standing to challenge the 1996 inventory based on their alleged injury from
imposition of the standard

31

As the basis for this conclusion, Plaintiffs first assert that under the 1996
Procedures, the public lands included in the inventory "will be considered
extensions of existing WSAs." Plaintiffs then assert that because WSAs are
managed under the IMP, "[i]t follows that Defendants will manage these units
under the IMP standards."
To support their assertion that the public lands included in the 1996 inventory
"will be considered extensions of existing WSAs," Plaintiffs apparently rely on
the following statement in the 1996 Procedures: "When review units are
contiguous to WSAs, they should be considered an extension of the WSA so
that no additional evaluation of outstanding opportunities is required." 1996
Procedures, supra. Read in context, this statement provides that review units
contiguous to existing WSAs are to be considered extensions of those WSAs in
determining whether the units possess "outstanding opportunities for solitude or
a primitive and unconfined type of recreation," which is one of several factors
for determining whether public lands have wilderness characteristics. See id.
Contrary to Plaintiffs' suggestion, the Procedures do not provide that these
review units will automatically be managed under the IMP simply because they
are considered extensions of existing WSAs for this one specific evaluation
purpose.

32

To the extent Plaintiffs claim the alleged changes to road maintenance policies
are attributable to Defendants' imposition of a de facto wilderness management
standard, their claim is encompassed in the cause of action directly challenging
imposition of the standard. See infra Part II.C

33

This court need not accept Plaintiffs' allegation that the 1996 inventory
constitutes a "major federal action," necessitating preparation of an EIS.
Although this issue is intertwined with the merits of Plaintiffs' claim, we
conclude it is appropriate to resolve the issue to the extent necessary to
determine whether Plaintiffs have suffered an injury-in-fact for standing
purposes. See supra note 20 (discussing appropriateness of resolving legal
questions to determine standing)
To the extent Plaintiffs allege that imposition of a de facto wilderness
management standard constitutes a "major federal action" requiring preparation
of an EIS, their claim is encompassed in the cause of action directly
challenging imposition of the standard. See infra Part II.C.

34

Plaintiffs moved for a preliminary injunction only with respect to the 1996
inventory. Plaintiffs did not move for a preliminary injunction to enjoin
Defendants from imposing the de facto management standard. In arguing
against Plaintiffs' motion to enjoin the inventory, Defendants did not directly

challenge Plaintiffs' standing to bring their de facto management claim. Further,

in their briefs on appeal, both parties focused on the inventory and did not
specifically address whether imposition of a de facto management standard
could be brought as an independent cause of action. In light of these facts, we
apply the more lenient motion to dismiss standard in determining whether
Plaintiffs have standing to bring their de facto management claim
35

See supra note 28 (quoting statement from Secretary)

36

There are three separately named Plaintiffs in this suit: the State of Utah, the
Utah School and Institutional Trust Lands Administration, and the Utah
Association of Counties. This court concludes the Trust Lands Administration,
which is most directly injured by imposition of a de facto wilderness
management standard, has standing to pursue the de facto wilderness
management cause of action. Because we have concluded that one of the
Plaintiffs has standing to bring the claim, we need not consider whether the
other two Plaintiffs would also have standing to bring the claim. See Watt v.
Energy Action Educ. Found., 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70
L.Ed.2d 309 (1981)

37

The redressability and immediacy requirements are relaxed somewhat for those
persons seeking to enforce procedural rights. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 572-73 n. 7, 112 S.Ct. 2130, 2142-43 n. 7, 119 L.Ed.2d
351 (1992). For example, the plaintiff need not establish with certainty that
adherence to the procedures would necessarily change the agency's ultimate
decision. See id.; see also Committee to Save the Rio Hondo v. Lucero, 102
F.3d 445, 452 (10th Cir.1996)

38

Plaintiffs' unopposed motion to supplement the record on appeal is hereby

granted