PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________ _________________ SOUTHERN UTAH WILDERNESS ALLIANCE; NATURAL RESOURCES DEFENSE COUNCIL; WILDERNESS SOCIETY; NATIONAL PARKS CONSERVATION ASSOCIATION; GRAND CANYON TRUST; SIERRA CLUB; NATIONAL TRUST FOR HISTORIC PRESERVATION; ROCKY MOUNTAIN WILD; UTAH RIVERS COUNCIL; GREAT OLD BROADS FOR WILDERNESS, Plaintiffs - Appellees,

v. MARCILYNN BURKE, in her official capacity as Assistant Secretary for Lands and Minerals Management of the United States Department o f the Interior; UNITED STATES BUREAU OF LAND MANGAGEMENT; UNITED STATES DEPARTMENT OF INTERIOR, Defendants - Appellees, SAN JUAN COUNTY; KANE COUNTY,

Intervenors Defe ndants - Appellants,

and STATE OF UTAH; CARBON COUNTY; TWILIGHT RESOURCES; PAR 5 EXPLORATION, LLC; UTAH SCHOOL AND INSTITUTIONAL TRUST LANDS No. 17-4113 FILED United States Court of Appeals Tenth Circuit 

### November 7, 2018

Elisabeth A. Shumaker Clerk of Court2 ADMINISTRATION; UINTAH COUNTY, Utah; DUCHESNE COUNTY, Utah; DAGGETT COUNTY, Utah; TRAILS PRESERVATION ALLIANCE, INC.; EMERY COUNTY; GRAND COUNTY; XTO ENERGY,

Intervenors Defendants.

––––––––––––––––––– –––––––––––––––– SOUTHERN UTAH WILDERNESS ALLIANCE; NATURAL RESOURCES DEFENSE COUNCIL; WILDERNESS SOCIETY; NATIONAL PARKS CONSERVATION ASSOCIATION; GRAND CANYON TRUST; SIERRA CLUB; NATIONAL TRUST FOR HISTORIC PRESERVATION; ROCKY MOUNTAIN WILD; UTAH RIVERS COUNCIL; GREAT OLD BROADS FOR WILDERNESS, Plaintiffs - Appellees,

v. MARCILYNN BURKE, in her official capacity as Assistant Secretary for Lands and Minerals Management of the United States Department o f the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT; UNITED STATES DEPARTMENT OF INTERIOR, Defendants - Appellees, SAN JUAN COUNTY; EOG RESOURCES, INC.; KANE COUNTY; TWILIGHT RESOURCES; PAR 5 EXPLORATION, LLC; UTAH SCHOOL AND INSTITUTIONAL TRUST LANDS ADMINISTRATION; XTO ENERGY; No. 17-41153 BADLANDS ENERGY; CRESCENT POINT ENERGY US CORP., Intervenors Defendants, STATE OF UTAH; CARBON COUNTY; UINTAH COUNTY, Utah; DUCHESNE COUNTY, Utah; DAGGETT COUNTY, Utah; EMERY COUNTY; GRAND COUNTY, Intervenors Defendants - Appellants,

and TRAILS PRESERVATION ALLIANCE, INC.; BLUE RIBBON COALITION, INC.; COLORADO OFF-HIGHWAY VEHICLE COALITION, Intervenors Defendants - Appellees.

________________ _________________ Appeals from the United States District Court for the District of Utah (D.C. No. 2:12-CV-00257-DAK)

________________ _________________ David Halverson (Sean D. Reyes, U tah Attorney General, Anthony L. Rampton and Kathy A.F. Davis, on the briefs ), Office of the Attorney Genera l for the State of Utah, Salt Lake City, Utah, appearing fo r Appellants State of Utah an d Carbon, Daggett, Duchesne, Emery, Grand , and Uintah Counties. Shawn T. Welch (Ashley A. Peck, w ith him on the briefs), Hollan d & Hart LLP, Salt Lake City, Utah, appearing for A ppellants San Juan and Kane Cou nties. Thekla Hansen-Young, Attorney, Environment & Natural Resources Division, United States Department of Justice, W ashington, DC (Jeffrey H. Wood, Acting Assistant Attorney General and Eric Grant, D eputy Assistant Attorney Gene ral, United States Department of Justice, Washingto n, DC; Andrew C. Mergen, Robert J. Lundman, and Luther L. Hajek, Attorneys, Envi ronment & Natural Resources Div ision, United States Department of Justice, Washingto n, DC; and Veronica Larvie, Off ice of the Solicitor,4 United States Department of the Interior, Washington, DC, with her on the brief), appearing for Appellees United St ates Bureau of Land Management

. Robin Cooley, Earthjustice, Denve r, Colorado (Stephen Bloch, So uthern Utah Wilderness Alliance, Salt Lake C ity, Utah, with her on the brie f), appearing for Appellees Southern Utah Wilderness Alliance, Natural Resources Defense Council, Wilderness Society, National Park s Conservation Association, Gr and Canyon Trust, Sierra Club, National Trust for H istoric Preservation, Rocky Mo untain Wild, Utah Rivers Council, and Great Old B roads for Wilderness.

________________ _________________ Before BRISCOE , BALDOCK , and EID , Circuit Judges.

________________ _________________ BRISCOE , Circuit Judge.

________________ _________________ These appeals were filed follo wing district court approval of a settlement agreement. The Settlement Agree ment sought to e nd a longstandin g, complex dispute dating from 2008. In 2008, environm ental groups led by the Sout hern Utah Wilderness Alliance (co llectively, “SUWA”) challenged six resou rce management plans (“RMPs”) and associated tra vel management plans (“TMPs”) adopted by the United States Bureau of Land Management (“BLM”). See App. 00032-76. Six other parties intervened as respondents in the district court, includ ing the State of Utah and several counties in Utah (collect ively, “Utah”). When BLM, SUWA , and multiple

intervenors entered into a settl ement and sought to dismiss the case in January 2017, Utah challenged the settlement. Utah contends, among other argu ments, that the Settlement Agreement illegally c odified interpretative BLM guid ance into substantive rules, impermissibly binds the BLM to a past Admini stration’s policies, infringes valid federal land ri ghts (known as “R.S. 2477 rights ”), and violates a prior5 BLM settlement. The district c ourt disagreed, and approved the Settlement Agreement. App. 01477-78.

Utah advances the sam e arguments on appeal and asks this court to reverse the

district court because the Settlem ent Agreement is unlawful and against the public

interest. SUWA asserts that this court lacks subject matter jur isdiction over Utah’s claims. We agree with SUWA, and dismiss for lack of subject mat ter jurisdiction.

I Central to this dispute is wheth er the BLM can simultaneously c omply with all of the following: the Settlement Agreement; the Federal Land Po licy and Management Act (“FLPMA”), 43 U.S. C. §§ 1701-1787; a prior BLM s ettlement (the “Wilderness Settlement”); curre ntly pending litigation (the “Wi ldlands Litigation”);

and the Administrative Procedure Act (“APA”). Utah contends tha t BLM cannot, and therefore the Settlement Agreem ent is unlawful and against publ ic policy.

We look first to the Se ttlement Agreement. See App. 01095-129. Section A lays out the general provisions o f the Settlement Agreement. Wi thin Section A, Paragraph 12 states that “[a] ny subsequent m odifications, suppl ements, or amendments to this Settlement Ag reement must be in writing, and must be signed and executed by or on behalf of the affected parties, or their successors in interest, as necessary.” Id. at 01100. Section B details more specific requirements on the action

that the BLM will take under the Settlement Agreement. Paragrap h 13 provides for deadlines by which BLM will issue five new T MPs for five specif ic travel6 management areas. Id. at 01100-01. Paragraph 15 detail s the process by which BLM will prepare the TMPs. In its ent irety, Paragraph 15 reads as f ollows: Applicable law and agency guidance. BLM will prepare the new TMPs for each of the TMAs identified in paragraph 13 pursuant t o applicable statutes, regulations , BLM-Utah Instruction Memorand um No. 2012-066 (“BLM-Utah IM 2012- 066”), and the terms identified in paragraphs 16-24 of the Settlemen t Agreement. In addition to BL MUtah IM 2012-066, relevant exis ting guidance includes, but is n ot limited to: BLM-Utah Guidance for the Lands with Wilderness Characteristics Resource, Instr uction Memorandum No. UT 2016-02 7 (September 30, 2016); BLM Nati onal Environmental Policy Act Handbook H-1790-1 (J anuary 2008); BLM-Utah Handbook 8110, Guidelines for Identify ing Cultural Resources (2002); BLM Handbook H-8342, Travel and Transportati on (March 16, 2012); BLM Manual 1613, Areas of Critical Environmental Concern (September 29, 1988); BLM Manual 1626, Travel and Transportation (July 14, 2011); BLM Manual 6320, Considering Lands with Wild erness Characteristics in BLM Land Use Planning (March 15, 2012); BLM Manual 6330, Management of BLM W ilderness Study Areas (July 13, 2012), 6340, Management of BLM Wilderness (July 13, 2012); and BLM Manual 8110, Identifying and Evaluating Cultu ral Resources on Public Lands (December 3, 2004). Nothing in the Settlement Agreement makes binding the aforementioned guida nce. Nothing in this Settlement Agreement shall be construed as limiting BLM’s discretion to promulgate new manuals, handbo oks, or instruction memoranda consistent with relevant law and regulations. The parties may a gree to modify the Settlement Agreement to reflect updated regulations or guidance, consistent with paragraph 12. App. 01101-1102. Utah contends t hat Paragraph 15 elevates certa in agency guidance

to the level of substantive ru les in violation of the APA, and also provides SUWA with veto power over future BLM guidance and substantive rulema king that could apply to the five specific trave l management areas listed in Pa ragraph 13.

Utah also contends that the BLM cannot comply with both the Set tlement Agreement in this case and a pr ior settlement a greement reached in a previous7 litigation, the aforementioned Wi lderness Settlement. The Wilde rness Settlement

resulted from different land-us e litigation between several of the same par ties to this litigation that concerned wilder ness study areas (“WSAs”) in Ut ah. See Utah v.

Norton , 2:96-CV-0870, 2006 WL 27117 98 (D. Utah Sept. 20, 2006), aff’d sub nom. Utah v. U.S. Dep’t of Interior , 535 F.3d 1184 (10th Cir . 2008). In the Wilderness Settlement, the BLM conceded that its authority to establish ne w wilderness study areas expired no later than Oct ober 21, 1993. App. 01426. The B LM further stipulated in the Wilderness S ettlement that it would not utili ze its general land use planning authority under FLPMA § 2 02 to establish, manage, or o therwise treat nonWSA public lands as w ilderness or as WSAs. Id. at 01427.

Utah asserts that the Settlement Agreement permits the BLM to u se its land use planning authority to circumv ent the Wilderne ss Settlement. 1 Utah points to Paragraph 17 to support its theory. For exa mple, Paragraph 17.e states:

Travel network minimization alternatives. BLM will explain in the NEPA document for each TMP how each proposed alternative route network will “minimize damage” to “resources of the public land s,” 43 C.F.R. § 8342.1(a), including id entified cultural resources and public lands with BLM-inventoried wilder ness characteristics. For purp oses of minimizing damage to public la nds with BLM-inventoried wilderne ss characteristics, BLM will consider the potential damage to any constituent element of wilderness characteristics, including na turalness, outstanding opportunities for solitude, and outstanding opportu nities for primitive and unconfined recreati on, for each alternative route network. BLM will consider in the NEPA d ocument at least one proposed alternative route network that w ould not designate for ORV use any

1 In separate on-going litigati on known as the Wildlands Litigat ion, Utah is currently advancing several clai ms that the BLM is imp ermissibly managing non-WSA lands as wilderness in defiance of the Wilderness Settlement. See State of Utah v. Zinke , 2:10-cv-0970-DB-BCW (D. Utah).8 route where BLM has determined that such use may “damage,” 43 C.F.R. § 8342.1(a), BLM-inventorie d wilderness characteristics; however, BLM need not consider c losing such a route to ORV use to the extent the use is authorized by an existing right-of-way or oth er BLM authorization or by law, including State of Utah v. Andrus , 486 F. Supp. 995 (D. Utah 1979), which will be documented in the final route report. App. 01106. Utah also contends t hat Paragraph 17.e disregards i ts R.S. 2477 rights, as does Paragraph 17.f. Parag raph 17.f, in full, states:

Alternative route networks within WSAs and Natural Areas. For routes or portions thereof that are located on public land with in wilderness study areas (“WSAs”) and Natural Areas, BLM will ana lyze in the NEPA document at least one alternative route network tha t would enhance BLM-inventoried wilderne ss characteristics by designati ng the routes or the relevant portions t hereof as closed to ORV use, u nless ORV use of the route is authori zed by an existing right-of-way or other BLM authorization or by law. To the extent ORV use of a route i s authorized, this alternative route network will include measure s limiting ORV use to enhance BLM-inventorie d wilderness characteristics t o the greatest extent possible consis tent with applicable laws, regul ations, or existing right-of-way authorizations. App. 01106.

II We begin our analysis by addres sing whether we have jurisdictio n over this dispute. SUWA and BLM assert thi s court lacks subject matter ju risdiction because

Utah has not established Article III standing and its claims ar e not ripe for judicial review. We need only focus on ripe ness to resolve the jurisdict ional question. See

Utah , 535 F.3d at 1191. “[T]he ripeness doctrine has tw o underlying rationales: prevent ing courts from becoming entwined in ‘abstract disagreements over administrativ e policies,’ and ‘protect[ing] the agencies from judicial interference until an administrative decision9 has been formalized and its effect s felt in a concrete way by t he challenging parties.’”

Id. at 1191-92 (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 148-49 (1967)). Under this analysis, we consider three factors: 1) whether delayed review would cause hardship to the plaintiff s; 2) whether judicial intervention w ould inappropriately interfere w ith further administrative action; a nd 3) whether the courts would benefit from further factual developmen t of the issues presented. Sierra Club v. U.S. Dep’t of Energy , 287 F.3d 1256, 1262-63 ( 10th Cir. 2002) (citing Ohio Forestry Ass’n, Inc. v. Sierra Club , 523 U.S. 726, 733 (1998)). A common thread running through all three factors points to our concludi ng that Utah’s appeal is unripe: at this point, no one kno ws how BLM will implement the Settlement Agreement. Many of Utah’s concerns are an ticipatory, or are not within the purview of the Settlement Agreement. For example , there are no final travel ma nagement plans. Additionally, BLM has not rescinde d any of the guidance referen ced in the Settlement Agreement, and therefor e SUWA has not had the opport unity to exercise its alleged veto power provided by the Settlement Agreement. Fu rther, the Settlement Agreement has no effect on R.S. 2477 rights, 2 App. 1107, and nothing in the Settlement Agreement requires BLM to protect wilderness charact eristics when developing a TMP. Instead, the S ettlement Agreement lays out cr iteria for BLM to consider as it develops TMPs in a complex regulatory scheme. BL M may ultimately

2 Utah’s complaints regarding R.S . 2477 rights appear to stem la rgely from the unique nature of these rights ra ther than from the Settlement A greement itself. See S. Utah Wilderness All. v. Bureau of Land Mgmt. , 425 F.3d 735, 740-42 (10th Cir. 2005) (explaining the interplay between R.S. 2477 and FLPMA).10 develop a TMP that creates de f acto wilderness, or may impermis sibly consider guidance that has been rescinde d or ignore future substantive r ules. But BLM might not. The Settlement Agreement ne ither requires BLM to create de facto wilderness, nor mandates that BLM reject fu ture agency action taken by the present Administration. Accordingly, thi s court can more confidently ad dress the substantive legal arguments raised by Utah w hen BLM finalizes the TMPs subj ect to the Settlement Agreement and ultimate ly reveals the Settlement Agre ement’s “true effect[.]” Utah , 535 F.3d at 1195. As we have stated previously whe n examining a challenge to a pr ior settlement agreement involving BLM, SUWA, and Utah: It is true that we could study th e language of the settlement a nd hazard a guess as to which of the parties has the better view of the set tlement’s eventual impact. But th e settlement is manifestly vague regardi ng how BLM can or should make specific land management decisions, and the ripeness doctrine exists precise ly for the purpose of preventin g unnecessary adjudication under su ch circumstances. We could the refore resolve the issues in this case more confidently with the benef it of insight into how BLM actually impl ements the settlement in prac tice.

Id. We agree that this approach a nd guidance apply equally here.

III The appeals are DISMISSED as unripe for adjudication.