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 of the Interior; UNITED 

STATES BUREAU OF LAND 

MANGAGEMENT; UNITED STATES 

DEPARTMENT OF INTERIOR, 

 Defendants - Appellees, 

SAN JUAN COUNTY; KANE COUNTY, 

 Intervenors Defendants - 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 Court
2 

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 of 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. 17-4115 
3 

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, Utah Attorney General, Anthony L. Rampton and 

Kathy A.F. Davis, on the briefs), Office of the Attorney General for the State of Utah, 

Salt Lake City, Utah, appearing for Appellants State of Utah and Carbon, Daggett, 

Duchesne, Emery, Grand, and Uintah Counties. 

Shawn T. Welch (Ashley A. Peck, with him on the briefs), Holland & Hart LLP, Salt 

Lake City, Utah, appearing for Appellants San Juan and Kane Counties. 

Thekla Hansen-Young, Attorney, Environment & Natural Resources Division, United 

States Department of Justice, Washington, DC (Jeffrey H. Wood, Acting Assistant 

Attorney General and Eric Grant, Deputy Assistant Attorney General, United States 

Department of Justice, Washington, DC; Andrew C. Mergen, Robert J. Lundman, and 

Luther L. Hajek, Attorneys, Environment & Natural Resources Division, United States 

Department of Justice, Washington, DC; and Veronica Larvie, Office of the Solicitor, 
4 

United States Department of the Interior, Washington, DC, with her on the brief), 

appearing for Appellees United States Bureau of Land Management. 

Robin Cooley, Earthjustice, Denver, Colorado (Stephen Bloch, Southern Utah 

Wilderness Alliance, Salt Lake City, Utah, with her on the brief), appearing for 

Appellees 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, and Great Old Broads for Wilderness. 

_________________________________ 

Before BRISCOE, BALDOCK, and EID, Circuit Judges. 

_________________________________ 

BRISCOE, Circuit Judge. 

_________________________________ 

These appeals were filed following district court approval of a settlement 

agreement. The Settlement Agreement sought to end a longstanding, complex dispute 

dating from 2008. In 2008, environmental groups led by the Southern Utah 

Wilderness Alliance (collectively, “SUWA”) challenged six resource management 

plans (“RMPs”) and associated travel 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, including the State of Utah and 

several counties in Utah (collectively, “Utah”). When BLM, SUWA, and multiple 

intervenors entered into a settlement and sought to dismiss the case in January 2017, 

Utah challenged the settlement. Utah contends, among other arguments, that the 

Settlement Agreement illegally codified interpretative BLM guidance into 

substantive rules, impermissibly binds the BLM to a past Administration’s policies, 

infringes valid federal land rights (known as “R.S. 2477 rights”), and violates a prior 
5 

BLM settlement. The district court disagreed, and approved the Settlement 

Agreement. App. 01477-78. 

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

district court because the Settlement Agreement is unlawful and against the public 

interest. SUWA asserts that this court lacks subject matter jurisdiction over Utah’s 

claims. We agree with SUWA, and dismiss for lack of subject matter jurisdiction. 

I 

Central to this dispute is whether the BLM can simultaneously comply with all 

of the following: the Settlement Agreement; the Federal Land Policy and 

Management Act (“FLPMA”), 43 U.S.C. §§ 1701-1787; a prior BLM settlement (the 

“Wilderness Settlement”); currently pending litigation (the “Wildlands Litigation”); 

and the Administrative Procedure Act (“APA”). Utah contends that BLM cannot, and 

therefore the Settlement Agreement is unlawful and against public policy. 

We look first to the Settlement Agreement. See App. 01095-129. Section A 

lays out the general provisions of the Settlement Agreement. Within Section A, 

Paragraph 12 states that “[a]ny subsequent modifications, supplements, or 

amendments to this Settlement Agreement 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. Paragraph 13 provides for 

deadlines by which BLM will issue five new TMPs for five specific travel 
6 

management areas. Id. at 01100-01. Paragraph 15 details the process by which BLM 

will prepare the TMPs. In its entirety, Paragraph 15 reads as follows: 

Applicable law and agency guidance. BLM will prepare the new 

TMPs for each of the TMAs identified in paragraph 13 pursuant to 

applicable statutes, regulations, BLM-Utah Instruction Memorandum 

No. 2012-066 (“BLM-Utah IM 2012-066”), and the terms identified in 

paragraphs 16-24 of the Settlement Agreement. In addition to BLMUtah IM 2012-066, relevant existing guidance includes, but is not 

limited to: BLM-Utah Guidance for the Lands with Wilderness 

Characteristics Resource, Instruction Memorandum No. UT 2016-027 

(September 30, 2016); BLM National Environmental Policy Act 

Handbook H-1790-1 (January 2008); BLM-Utah Handbook 8110, 

Guidelines for Identifying Cultural Resources (2002); BLM Handbook 

H-8342, Travel and Transportation (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 Wilderness Characteristics in 

BLM Land Use Planning (March 15, 2012); BLM Manual 6330, 

Management of BLM Wilderness Study Areas (July 13, 2012), 6340, 

Management of BLM Wilderness (July 13, 2012); and BLM Manual 

8110, Identifying and Evaluating Cultural Resources on Public Lands

(December 3, 2004). Nothing in the Settlement Agreement makes 

binding the aforementioned guidance. Nothing in this Settlement

Agreement shall be construed as limiting BLM’s discretion to 

promulgate new manuals, handbooks, or instruction memoranda 

consistent with relevant law and regulations. The parties may agree to 

modify the Settlement Agreement to reflect updated regulations or 

guidance, consistent with paragraph 12. 

App. 01101-1102. Utah contends that Paragraph 15 elevates certain agency guidance 

to the level of substantive rules in violation of the APA, and also provides SUWA 

with veto power over future BLM guidance and substantive rulemaking that could 

apply to the five specific travel management areas listed in Paragraph 13. 

Utah also contends that the BLM cannot comply with both the Settlement 

Agreement in this case and a prior settlement agreement reached in a previous 
7 

litigation, the aforementioned Wilderness Settlement. The Wilderness Settlement 

resulted from different land-use litigation between several of the same parties to this 

litigation that concerned wilderness study areas (“WSAs”) in Utah. See Utah v. 

Norton, 2:96-CV-0870, 2006 WL 2711798 (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 new wilderness study 

areas expired no later than October 21, 1993. App. 01426. The BLM further 

stipulated in the Wilderness Settlement that it would not utilize its general land use 

planning authority under FLPMA § 202 to establish, manage, or otherwise treat nonWSA public lands as wilderness or as WSAs. Id. at 01427. 

Utah asserts that the Settlement Agreement permits the BLM to use its land 

use planning authority to circumvent the Wilderness Settlement.1

 Utah points to 

Paragraph 17 to support its theory. For example, 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 lands,” 43 

C.F.R. § 8342.1(a), including identified cultural resources and public 

lands with BLM-inventoried wilderness characteristics. For purposes of 

minimizing damage to public lands with BLM-inventoried wilderness 

characteristics, BLM will consider the potential damage to any 

constituent element of wilderness characteristics, including naturalness, 

outstanding opportunities for solitude, and outstanding opportunities for 

primitive and unconfined recreation, for each alternative route network. 

BLM will consider in the NEPA document at least one proposed 

alternative route network that would not designate for ORV use any 

 

1

 In separate on-going litigation known as the Wildlands Litigation, Utah is currently 

advancing several claims that the BLM is impermissibly 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-inventoried wilderness characteristics;

however, BLM need not consider closing such a route to ORV use to the 

extent the use is authorized by an existing right-of-way or other 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 that Paragraph 17.e disregards its R.S. 2477 rights, 

as does Paragraph 17.f. Paragraph 17.f, in full, states: 

Alternative route networks within WSAs and Natural Areas. For 

routes or portions thereof that are located on public land within 

wilderness study areas (“WSAs”) and Natural Areas, BLM will analyze 

in the NEPA document at least one alternative route network that would 

enhance BLM-inventoried wilderness characteristics by designating the 

routes or the relevant portions thereof as closed to ORV use, unless 

ORV use of the route is authorized by an existing right-of-way or other 

BLM authorization or by law. To the extent ORV use of a route is 

authorized, this alternative route network will include measures limiting 

ORV use to enhance BLM-inventoried wilderness characteristics to the 

greatest extent possible consistent with applicable laws, regulations, or 

existing right-of-way authorizations. 

App. 01106. 

II 

We begin our analysis by addressing whether we have jurisdiction over this 

dispute. SUWA and BLM assert this court lacks subject matter jurisdiction because 

Utah has not established Article III standing and its claims are not ripe for judicial 

review. We need only focus on ripeness to resolve the jurisdictional question. See

Utah, 535 F.3d at 1191. 

“[T]he ripeness doctrine has two underlying rationales: preventing courts from 

becoming entwined in ‘abstract disagreements over administrative policies,’ and 

‘protect[ing] the agencies from judicial interference until an administrative decision 
9 

has been formalized and its effects felt in a concrete way by the 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 plaintiffs; 2) 

whether judicial intervention would inappropriately interfere with 

further administrative action; and 3) whether the courts would benefit 

from further factual development of the issues presented. 

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 concluding that Utah’s appeal is 

unripe: at this point, no one knows how BLM will implement the Settlement 

Agreement. 

Many of Utah’s concerns are anticipatory, or are not within the purview of the 

Settlement Agreement. For example, there are no final travel management plans. 

Additionally, BLM has not rescinded any of the guidance referenced in the 

Settlement Agreement, and therefore SUWA has not had the opportunity to exercise 

its alleged veto power provided by the Settlement Agreement. Further, 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 characteristics when 

developing a TMP. Instead, the Settlement Agreement lays out criteria for BLM to 

consider as it develops TMPs in a complex regulatory scheme. BLM may ultimately 

 

2

 Utah’s complaints regarding R.S. 2477 rights appear to stem largely from the 

unique nature of these rights rather than from the Settlement Agreement 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 facto wilderness, or may impermissibly consider 

guidance that has been rescinded or ignore future substantive rules. But BLM might 

not. The Settlement Agreement neither requires BLM to create de facto wilderness, 

nor mandates that BLM reject future agency action taken by the present 

Administration. Accordingly, this court can more confidently address the substantive 

legal arguments raised by Utah when BLM finalizes the TMPs subject to the 

Settlement Agreement and ultimately reveals the Settlement Agreement’s “true 

effect[.]” Utah, 535 F.3d at 1195. 

As we have stated previously when examining a challenge to a prior settlement 

agreement involving BLM, SUWA, and Utah: 

It is true that we could study the language of the settlement and hazard a 

guess as to which of the parties has the better view of the settlement’s 

eventual impact. But the settlement is manifestly vague regarding how 

BLM can or should make specific land management decisions, and the 

ripeness doctrine exists precisely for the purpose of preventing 

unnecessary adjudication under such circumstances. We could therefore 

resolve the issues in this case more confidently with the benefit of 

insight into how BLM actually implements the settlement in practice. 

Id. We agree that this approach and guidance apply equally here. 

III 

The appeals are DISMISSED as unripe for adjudication.