### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 18, 2003 THOMAS K. KAHN CLERK

* Honorable

Richard F. Suhrheinr ich, Unite d States C ircuit Ju dge for the Sixth Circuit, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-10555

________________________ D. C. Docket No. 01-01953-C V-UUB NATIONAL PARKS CONSERVATION ASSOCIATION, TROPICAL AUDUBON SOCIETY, Plaintiffs-Appe llants,

versus GAIL NORTON, as Secretary of the United States Departm

ent of the Interior

, and FRAN P. MAIN

ELLA, as Di

rector of the National Park Service, Defendants-Appe llees.

________________________ Appeal from the United States District Court for the Southern District of Florida

_________________________ (March 18, 2003) Before CARNES, MARCUS and SUHRH EINRICH * , Circuit Judges.1 In1976 the boundaries of Biscayne National Park had

not yet been

expanded to encomp

ass Stiltsville, and the State

of Florida was r

esponsible for ma

naging the str

uctures. A more c

omplete account of Stiltsville’s history is set forth, infra

. 2 MARCUS, Circuit Judge: This case centers around the fate of “Stiltsville,” a collection of stilted buildings located in Biscayne Bay, off the southern coast of Key Biscayne, Florida. These b

uildings presently

rest within the bounda

ries of Biscay

ne National Park, a

nd accordingly th

e National Park S ervice (“N PS”) is charged w

ith their administr

ation. However

, in 1976, prior to the

assumption by

the NPS of responsibility fo

r their manage

ment, 1 the structures we

re leased by the

State of Florida to individual occupants for 23 year terms. These leases expressly provided that upon their expira

tion on July 1, 1999 t

he Stiltsville struc

tures would be removed. As

this deadline approa

ched, however,

the lessees of these

buildings successfully underto ok to extend their exclusive occupan cy. On May 14, 2001,

appellants the Nat

ional Parks Conserv

ation Association (“NPCA”)

and Tropical Audubon Society (“ TAS”) responded

to the lessees’ efforts by filing this action in the United States District Court for the Southern District of Flori

da. They all

eged that the NPS’ s failure to disconti nue the exclusive private use of the Stiltsville structures violated the National Park Service Organic Act (“Organic Act”), 16 U.S. C. § 1 et seq., the Biscayne National Park2 Although this suit technically is brought against both the Department of the I nterior (“DOI”) and the NPS, the NPS simply is a sub di vision of the DOI , and according

ly we will re

fer in this opinion to the NPS as the appellee in the case. 3 General Management Plan (“General Managem ent Plan”), the National Environmental

Protection Act (“

NEPA”), 42 U .S.C. § 4321 et se q., several of th

e administrative regulations that attend the Organic Act and the NEPA and the equal protection component of the Fifth Amendment. With the exception of the equal protection claim

, which they br

ought under the Due P

rocess Clause of the

Fifth Amendme

nt, NPCA and TAS advanced each of their claims u

nder the Administrative

Procedures Act (

“APA”), 5 U.S.C. § 706( 1) & 2(A). Appe llants sought to compel the NPS 2 to either rem ove the structures or

make them

accessible to the public. The district court

granted summ

ary judgm

ent to the NPS on all

of appellants’ clai

ms. It reaso

ned that it lacked subj ect matter j urisdiction under the APA because decisions whether and how to comply with the Organic Act, G eneral Management Pl

an, NEPA and th

eir implem

enting regulations ar

e vested entirely within th e NPS’s discre tion. Accor dingly, the court appl ied the APA’s “committed to agency discretion” exception to the rule providing for judicial review of administrative ac tion. See5 U.S.C. § 701( a)(2); Heckler v. Chaney , 470 U.S. 821, 828-35, 105 S. Ct. 1649, 1654-58, 84 L. Ed. 2d 714 (1985). The district4

court also held that a

ppellants lacked sta

nding to advance their

Fifth Amendm

ent equal protection cla

im. NPCA a

nd TAS appeal both o f these holdings. After thorough review, we find that the district court’s conclusion that appellants’ APA claims were non-justiciable was correct, as was the entry of final summary judgm

ent for appellee on appellants’ equal protection claim. However, we base both of these

results on differe

nt grounds than were

relied on by the district court. See Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249, 1256 ( 11 th Cir. 2001) (noting that “

we may a ffirm [the di strict court’s] judgment ‘o n any ground that finds support in the

record’” (quoti

ng Jaffke v. Dunham , 352 U.S. 280, 281, 77 S. Ct. 307, 308, 1 L. Ed. 2d 3 14 (1957))). In partic ular, we conclude that we lack subject matter jurisdiction over appellants’ APA claim s because the NPS has not taken any act

ion vis-a-vis the futu

re managem

ent of Stiltsville tha

t can be considered “fi

nal” within the m

eaning of 5 U.S. C. § 704. Further more, although NPCA and TAS enjoy standing to pursue their equal pr

otection claim

, that claim i s unavailing on its m

erits.

I. “Stiltsville” is a collection of str uctures constructe

d on stilts in the shallow waters of Biscayne Bay south of Key Biscay ne, Florida. The buildings are la rgely5

weekend homes , restaurants and nightclubs that were built by wealthy

individuals beginning in the 1930s. B y 1945 there we

re 14 stilted structu

res in the bay,

and by the 1960s there were 27 such structures in relatively close proximity to each other, and this collection of

buildings became

known as “Stilt

sville.” Over the

years, the majority o f these struct ures ha ve been destro yed by hur ricane s, and t oday onl y 7 remain in existence. During the mid-1960s, the Florida Department of Natural Resources asserted its juri sdiction over the stat e-owned subme

rged lands on which S

tiltsville rests, and issued to private individuals renewable year-to-year leases for the

structures at nom

inal rent. Subseque

ntly, in 1968 Congr

ess established Biscayne National Monume

nt, the northern bound

ary of which w

as approximate

ly five miles south of the

Stiltsville structur

es. Congress created the Monume nt “to preserve and prote

ct for the educatio

n, inspiration, re

creation, and enj oyment of present and future g

enerations a rare

combination of te

rrestrial, m

arine, and amphibious life i

n a tropical setting o f great natural be auty.” Pub. L . No. 90-606, § 1, 82 Stat. 1188 (1968). In 1976, the State of Florida replaced the year-to-year leases with exclusi

ve “Camps

ite leases” that expired on July 1, 1999 and set the rent at $700 per year. These agreements expressly provided that the lessees6

forfeited all righ

ts to the buildings other

than those provided for

in the leases, and that the structures were to be removed by the lessor u pon the leases’ expira tion. In 1980, Congress passed the Biscayne National Park Enabling Act (“Enabling Act”), 16 U.S.C. §§ 410gg et seq., which converted Biscay ne National Monument into Biscayne National Park. The Park encom passes 71,000 acres that the Monument did no

t, including the are

a in which Stiltsvill

e is located. The Enabling Act direc

ted the Park Servi

ce to “preser

ve and administe

r the park in accordance with the provisions” of the National Park Service Organic Act (“Organic A

ct”), 16 U.S. C. § 1, and to develo p a revised man

agement plan f

or the new park. Acco

rdingly, in 1983 th

e NPS issued “ [t]he Genera l Management P

lan, Development Concept Plan, Wi lderness Study a

nd Environmenta

l Assessment” for Biscayne N

ational Park. T

his Plan was prepa

red with public notice and comment after the completion of env ironmental review as requi red by the NEPA, and it remains i

n effect. The P

lan states that the S

tiltsville buildings and surrounding area will be managed as a natural area for the protection of the natural resources within th

e Park, that the l

eases pertaining to t

he structures will

expire on July 1, 1999 and ca

nnot be renewed, a

nd that the buildings ar

e to be removed

upon the expiration of the

leases. Howeve

r, the Plan does not

specify the m

ethod or exact timing of

the removal. In 1985, Florida deeded to the federa l government3 Florida donated this land “

subject to outstand

ing easements, r

eservations, or i

nterests appearing of record,” thereby ensuring that the 1976 leases r emained bindingfollowing the transfer. 7 the submerged lands on which Stiltsville sits, an action that resulted in the NPS becoming landlor

d for the leaseholde

rs. 3 From the exec

ution of the “ca

mpsite leases”

in 1976 until near the e

nd of the 23 year lease term, the structures were occupied without incident. Howe ver, as the July 1, 1999 ex

piration date approa

ched, the leasehol

ders undertook a ser

ies of actions aimed at preserving their exclusive use of the buildings. They twice filed with the Keeper of the National Register applications to have the buildings listed in the National Regi ster of Historic P laces. These ap

plications were opposed by the NPS and both ultimately were denied. Then, on June 29, 1999, with the threat of a lawsuit loom

ing, appellee and th

e leaseholders ente

red into a “Sta

ndstill Agreement”

which provided for t

he continued private occupancy of the buildings until December 1, 1999. On November 22, 1999, this agreem ent was extended through Novembe

r 29, 2000. Subseque

ntly, bills wer

e introduced in both the

106 th and 107 th Congresses to modify the border s of Biscayne N

ational Park to exc

lude Stiltsville, see H.R. 1002, 107 th Cong. (1 st

Sess. 2001); H.R

. 3033, 106 th Cong. (2d Sess. 2000), but neit her of these measures passe d.8

As the Novembe

r 29, 2000 extended de

adline neared, the

Stiltsville occupants filed two

separate actions i

n the United States

District Court for

the Southern District of

Florida in an effort to forestall the terminatio n of their leases. These were cap

tioned Bay Chateau, Inc. v. United States , No. 00-4529 (S.D. Fla. 2000) and Miami Springs Power Boat Club v. United States , No. 00-4518 (S.D. Fla. 2000), and in each the plaintiff leaseholders claimed that the NPS lacked authority under the 1976 leases to evict them. On November 29, 2000 the district court entered a te

mporary r estraining order pr

eventing the NPS f

rom moving t

o evict the Stiltsville residents, and then on December 18, 2000 the court converted the TRO into a preliminary injunct ion that remained in pla ce until April 1, 2001

. That same month, while these suits were pending, Congress passed an appropriations rider

extending the second S

tandstill Agreem

ent until March 31, 2001. See Pub. L. No. 106-554, § 129, 114 Stat. 2763, 2763A-230 (2000). On March 31, 2001, the parties settled the Miami Springs Power Boat Club and Bay Chateau

cases. The settlement agreement required the NPS to forebear from evicting t

he leaseholders unti

l April 1, 2002. In

addition, the agree

ment expressly provide

d that it “does not

constitute a transf

er or conveyance by the United States of any right , title, or interest to t he Stiltsville Occup ants.”9

Against this backgrou

nd, on May 14, 200 1 the National Par ks Conservation Association and th e Tropical Audubon So ciety filed this suit u nder the APA, 5 U.S.C. § 706(1) & (2)(A), and the Due Process Clause of th e Fifth Amendment. They alleged t

hat the NPS’s r

epeated acquiesce

nce in the Standstill Agreements and other failures to evict the Stiltsvil le leaseholders upon the expiration of the campsite leas es were tantam ount to the grant of an e

xclusive lease to the buildings’ occupants. Appellants claimed that this inaction by the NPS violated the Organic Act,

the General Mana

gement Plan,

the NEPA, sev

eral administr

ative regulations that atte

nd these provisions and t he equal protection c

omponent of the Fifth Amendm

ent Due Process Clause. The parti es filed cross m

otions for summary judgment, an

d although the district

court denied appella

nts’ motion it granted summ

ary judgm

ent in favor of the N

PS. The court r

easoned that although the APA provides f

or judicial revie

w of agency ac

tion that is final or t

hat is specifically m

ade reviewable by

statute, there ar

e two notable statuto

ry exceptions to this general proposi

tion. Under 5 U. S.C. § 701(a), judicial review

is unavailable where

“(1) statutes preclude judicia l review; or (2) a

gency action is committed to agency discretion by law. ” The district court quickly concluded that judicial review was not prohibited under any of the substantive statutes that10

plaintiffs alleged the NPS to have viol ated, which left

as potentially a

pplicable only the exception cod ified at § 701(a)(2).

In Heckler , the Supreme Court held that judicial “review is not to be had [under § 701(a)(2) ] if the statute [ in question] is draw

n so that a court would

have no meaningful sta

ndard against which to judge the agency ’s exercise of discretion.” 470 U .S. at 830, 105 S. Ct. at 1655. Rely

ing on Heckler ’s exposition of the “com

mitted to agenc

y discretion” e

xception, the distri

ct court in this case determined that none of the statutory provisions that allegedly had been violated by the NPS cont

ained a standard tha

t was sufficiently

definite to perm

it meaningful ju

dicial review. In fact, the distr ict court held that “ ‘Congress delegated the entire area of parks management to the’ Secre tary of the Interior.” District Court’ s opinion at 11 (quoting Maloney v. Sheehan , 453 F. Supp. 1131, 1140 (D. Conn. 1978)

). Although the cour

t “acknowledge [d]” appellants’ contention that t he Organic Act suppli es a meaningful standard for judicial review, it held that this Act “merely establishes a serie s of general direc tives to” promote and regulate the National Parks. The Organic Act, the court continued, is silent as to the means by

which this prom

otion and regulation ar

e to be realized. The district court also n

oted that the only discernible congres sional policy re garding the Stiltsville leas es is consistent with the NPS’s inac tion, as evidenced b

y11

Congress’s direction to extend the Stand still Agreement until Mar ch 21, 2001. Based on this analy

sis, the court concl

uded that neither the

Organic Act, t

he General Managem

ent Plan nor the NE

PA supplies a m

eaningful standard a

gainst which to review a

ppellees’ failur

e to evict the Stilts

ville occupants. A

s such, it held that appellants’ claims sounding in the violation of these statutes were unreviewable by

a court. As for t

heir equal protecti

on claim, the d

istrict court held that NPCA and TAS lacked standing to vi ndicate the intere st of all mem bers of the public in fully enj oying Biscay ne National Park.Accordingly, it determined t

hat it lacked subject matter jurisd iction over this cl aim. Based on the foregoing analysis, the district court granted summary judgment in favor of the NPS, an d it is from this order tha t NPCA and TAS presently appea

l. On appeal, N

PCA and TAS ar

gue that this case is r

eadily dist ingu ishab le fro m Heckler , where the FD A was held to have a

bsolute discretion whether to underta

ke enforceme

nt activities, as th

e NPS is not affor

ded discretion under the Organic A

ct, General Ma

nagement Plan or NEPA. As a corollary of t

his argument, app ellants note that the exception codified a t 5 U.S.C. § 701(

a)(2) is narrow in scope, and contend that these enactments do pr

ovide a meaningf

ul and altogether sufficient standard against which to review appellees’ inaction. They also assert that the

district court err

ed by holding that th

ey lack standing t

o12

advance their Fif

th Amendm

ent equal protection

claim, as the

y seek not to vindicate the rights o f the public at large , but rather of the ir member

ship specif ically. In response, appel

lees advance three

primary a

rguments. Fir

st, seeking to analogize their ina

ction to the inaction of

the FDA that wa

s at issue in Heckler , they characte

rize their failur

e to terminate

the Stiltsville lea

ses as a wholly discre tionar y decisi on not to exer t their enforce ment powe r. As suc h, they s ay, this decision is entire

ly unreviewabl

e by a court unde

r § 701(a)(2). S econd, appellees assert that judicial review may be had only of final agency actions, and that th eir deci sion n ot to ev ict the Stilts ville l easeho lders i s non-f inal. Fi nally, they contend that

appellants’ clai

ms are not ripe . Although the NPS does not defend the district court’s determination that appellants lack standing to advance their Fifth Am

endment equal pr

otection claim

, it argues that this

claim is unavailing on its m

erits. Before evaluating the central issues in this lawsuit, we observe that since the inception of this a

ction the NPS has ta

ken several me

aningful steps towar

d the implementation of a permanent m anagement plan for the Stiltsville structures. In particular, appellee asserts that as the Bay Chateau and Miami Springs Power Boat Club litigation proceede

d it began a “com

prehensive and m

ulti-faceted process for13

reviewing the m

anagement of pa

rk resources, inc

luding Stiltsville, a

nd evaluating potential management options for the future.” The National Park Service observes that it published in the Federal Register a notice of intent to prepare a new management plan for Biscayne National Park and an attendant draft e nvironmental impact statement (“DEIS”). See Intent to Prepare a Draft Environmental Impact Statement for

the Stiltsville Mana

gement Plan,

Biscayne Nat

ional Park, 66 Fed. Reg. 65,989, 65,9 89-90 (Dec. 21, 2 001). In this notice the NPS describe d its forthcoming plan as “guid[ing] public use and management of [the buildings],” id. at 65,989, with the

attendant DEIS e

valuating the potentia

l environmental

impacts associated with the

manageme

nt options being consider ed. The NPS also points to its establishmen

t of a 22 mem

ber commi

ttee (which, nota

bly, included a representative of

TAS) to review

alternatives for t

he future use and m

anagement of the Stiltsville str

uctures. This com

mittee held sev

eral public meetings during 2001 and 2002, see Meeting Notice, 67 Fed. Reg. 34,9 51, 34,951 (May 16, 2002) (announcing a May

29, 2002 public hearin

g); Notice of Inte

nt, 67 Fed. Reg. 42,280, 42,280 (June 21, 2002) (noting that public hearings on Stiltsville had been conducted on Septem

ber 24 th and 25 th , 2001), and ultim ately submi

tted a report to the NPS.14

Most importantly

, roughly 6 wee

ks prior to oral argu

ment in this case appellee promu

lgated both the planned

amendment

to the General Ma

nagement Plan, in which it outlines four management alternatives for Stiltsville, and a DEIS that evaluates each o f these options. See Notice of Availa bility, 67 Fed.Reg. 71,980, 71,981 (Dec. 3, 2002) (announcing the availability of these documents); Biscayne National Park General Management Plan Am endment and Draft Environmental Impact Statement, available at http://www.nps. gov/bisc/stiltsville/st iltsvillewhatsnew .htm (last visi ted Feb. 26, 2003). The period for public comment on these alternatives and the DEIS expired on February 13, 2003, and appellee presently is reviewing the public’s feedback as a preface to making a final decision regarding Stiltsville’s future. At oral argument we asked the parties to submit briefs proposing a timefram e for an ultimate, binding deci sion as to the pros pective management of the stru ctures. Notably, the NPS says that it anti cipates making a final dec ision by “[m]id-May,” and appellants have i

ndicated this tim

eframe is a r

easonable one from

their perspective. Against this backgrou

nd, we address the

merits of the p arties’ argum ents.15 II. We review a su

mmary judgment rulin

g de novo , applying the same legal standard used by the di strict court. See Johnson v. Bd. of Reg ents , 263 F.3d 1234, 1242-43 (11 th Cir. 2001). In co nducting this exam

ination, we view the materials presented and all fa

ctual inferences in the light most f avorable to the non-m

oving party. See Adickes v. S.H . Kress & Co. , 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 , 26 L. Ed.2d 142 (19 70). Summ ary judgm

ent is appropriate w

here “there is no genuine issue as to any

material fa

ct” and “the m

oving party is enti

tled to a judgment as a m

atter of law.”

Fed. R. Civ. P . 56(c). The bur den of demonstra

ting the satisfaction of this standard lies w ith the movant, who must presen t “pleadings, depositions, answer

s to interrogatories , and admissions on file, together w

ith the affidavits, if any” that establish the absence of any genuine, material fac tual dispute. Id.

A. As a general rule, actions taken by federal administrative agencies are subject to judicia

l review. 5 U. S.C. § 706; Abbott Labs. v. Gardner , 387 U.S. 136, 140-41, 87 S. Ct. 1507 , 1511, 18 L. Ed. 2d 681 (19 67), overruled on other16

grounds , Califano v. Sanders , 430 U.S. 99, 1 05, 97 S. Ct. 980, 984, 51 L. Ed. 2d 192 (1977). However, as the district court noted, under 5 U.S.C. § 701(a) federal courts lack jurisd

iction over admi

nistrative action w

here “(1) sta

tutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” Notably, these

are not the only c

ircumstances under which feder al courts cannot review an agency’s acts; as is especially relevant in the present context, federal jurisdiction is sim

ilarly lacking w

hen the administr

ative action in questi

on is not “final” within the meaning of 5 U.S.C. § 704. See Independ ent Petrol eum Ass’n of Am. v. B abbitt , 235 F.3d 588, 594 (D.C. Cir. 2001) (“‘[T] he requirement of a final agency a

ction has been conside

red jurisdictiona

l. If the agency

action is not final, the court th

erefore cannot r

each the meri

ts of the dispute.’ ” (quoting DRG Funding Corp. v. Se

c. of Hous. & Ur

ban Dev. , 76 F.3d 1212, 1214 (D.C. Cir. 1996))). This sec

tion provides in pertine

nt part that “[ a]gency act ion made reviewable by

statute and final ag

ency action for

which there is no othe

r adequate remedy in a

court are subjec

t to judicial revie

w. A prelim

inary, proce

dural, or intermediate

agency action or

ruling not directly

reviewable is subj ect to review on the review of the f

inal agency ac

tion.” 5 U.S.C . § 704. In Bennett v. Spear , the Supreme Court delineated the contours of the “final agency action”

requirement.It held:17

As a general matter, two conditions must be satisfied for agency action to be “fi

nal”: First, the a

ction must m

ark the “consum

mation” of the agency’ s decisionmaking process, -- it m ust not be of a me

rely tentative or interl

ocutory nature.

And second, the ac

tion must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.” 520 U.S. 154, 177- 78, 117 S. Ct. 1154, 1168, 137 L. Ed. 2d 281 (1997) (quoting Chicago & S. Air

Lines, Inc. v.Waterman

S.S. Corp. , 333 U.S. 103, 113, 68 S. Ct. 431, 437, 92 L. Ed. 568 (1948) and Port of Boston Marin e Terminal A

ss’n v. Rederiaktiebolage

t Transatlantic , 400 U.S. 62, 7 1, 91 S. Ct. 203, 209, 27 L. Ed. 2d 203 (1970)); see also Darby v. Cisn eros , 509 U.S. 137, 144, 113 S. Ct. 2539, 2543, 125 L. Ed. 2d 113 (1993) (“‘[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual,

concrete injury

. . . .’” ( quoting Williamson Co unty Reg’l Planning Comm ’n v. Hami lton Bank of Johnson City , 473 U.S. 172, 193, 105 S. Ct. 3108, 3120, 87 L . Ed. 2d 126 (1985)) ); Franklin v. Massac

husetts , 505 U.S. 788, 797, 112 S. Ct.2767, 2773, 120 L. E d. 2d 636 (1992) (“

The core question [

in the finality det

ermination] is whether the age ncy has com

pleted its decisionm

aking process, and whet

her the result of tha

t process is one that w

ill directly af

fect the parties.”). By contrast, “the Suprem e Court has defined a nonfinal agency order as one that ‘does not it

self adversely

affect compl

ainant but only af

fects his rights18

adversely on the contingency of future administrative action.’” American Airlines, Inc. v. Herman , 176 F.3d 283, 288 (5 th Cir. 1999) (quoting Rochester Tel. Corp. v. United States , 307 U.S. 125, 130, 59 S. Ct. 754, 757, 83 L. Ed. 11 47 (1939)). In Bennett , which featured a challenge to a position set forth in a Federal Fish and Wildlife Service Biological Opinion, the Supreme Court distinguished the case at bar fr

om two previous d

ecisions in which the

Court had held the administrative action in question to be non-final under § 7 04. See 520 U.S. at 178, 117 S. Ct. at 1168-6 9 (distinguishing Franklin , 505 U.S. 788, 112 S. Ct. 2767 and Dalton v. Specter , 511 U.S. 462, 114 S. Ct. 1719, 128 L. Ed. 2d 497 (1994)). It said: In the former case [ Franklin ], the agency action in question wa

s the Secretary of Commer

ce’s presentation to the President of a report tabulating the result

s of the decennial c ensus; our holding that th is did not constitute “f

inal agency ac

tion” was prem

ised on the observation that the report carried no direct consequences and served more like a tentative recommendation th an a final and bindi ng determination. And in the latter case [ Dalton ], the agency action in question was submission to the P

resident of base cl

osure recomm

endations by the Secretary of

Defense and the D efense Base Closur e and Realignme

nt Commission;

our holding that this wa

s not “final age

ncy action” followed from the fact that the recomme ndations were in no way binding on the Presiden

t, who had absolute d

iscretion to accept

or reject them.19

Id. (internal citation

s and punctuation om

itted). The Cour

t concluded in Bennett that § 704’s “final agency action” requirement was satisfied in that case becaus e “[u]nlike the

reports in Franklin

and Dalton , which were pur ely advisory

and in no way affect

ed the legal rights of

the relevant actor

s, the Biological O

pinion at issue here has direct an

d appreciable lega

l consequences.” 5 20 U.S. at 178, 1 17 S. Ct. at 1169. Upon applying thes e general principle s to the facts of this case, we conclud e that the NPS’s f

ailure to discontinue

the private occupan

cy of the Stilts

ville

structures cannot be considered “final agen cy action” within the meaning of § 704. Preliminarily, we note that although appellee may have acted less than expeditiously in it

s planning for Stiltsvi

lle’s future since the expiration of t he campsite leas es on July 1, 1999, not all of the blam

e for the delay

in impleme

nting a managem

ent plan can be prope

rly attributed t

o the NPS. Indee

d, from November 29,

2001 through April 1, 2002, appellee wa s expressly bar

red by judicial order and subsequently barred by both judicial order and legislative mandate from

disturbing the Stiltsvi

lle occupants’ ex

clusive access to the structures. Even had the NPS been disposed to act during this period it was forbidden from doing s o.20

Moreover, as we

have explained at som

e length, the NPS

is actively planning the prospective management of Stiltsville. Specifically, it has crafted four managem

ent alternatives f

or Stiltsville and a d

raft EIS that ev

aluates each of these options. See Biscayne Nat ional Park Gener

al Management

Plan Amendm

ent and Draft Environmental Impact Sta tement, available at http://www.nps. gov./bisc/stiltsville /stiltsvillewhatsne

w.htm. Thi s document is 238 pages long, and pla inly reflects a great deal of care and effort in its fo rmulation. We find it notable

that none of the four

options being considere

d provide for the continued private occupancy of the structures. Finally, we again observe that appellee has assured this court that its decisionmaking process will be completed by mid-May

, 2003. Simply

put, although to date i

t has made no fin

al decision, it is indisputable that the NPS is actively engaged in planning, and has set an anticipated date f

or resolving, Stilt

sville’s future,

and none of the m

anagement alternatives under active consideration would maintain the status quo that appellants find to be objectionable. Under these circ

umstances, w

e cannot conclude tha

t the NPS has taken

any final action or enga

ged in a pattern of in

action that can be sa

id to “mar

k the ‘consummation’ of the agency’ s decisionmaking process” or to be “one by which ‘rights or obligations have been determined,’ or from which ‘legal c onsequences21

will flow.’” Bennett , 520 U.S. at 177-78, 117 S. Ct. at 1168 (citations omitted); see also Darby , 509 U.S. at 144 , 113 S. Ct. at 254 3 (holding that adm inistrative action will be consid

ered “final”

only if the agenc

y “has arr ived at a definitive position on the issue” in question) (citation omitted). It is beyond any doubt that further administrative action is forthcoming: one of the four proposed manageme

nt alternatives wi

ll soon be selected an

d implemen

ted. As such, nothi

ng that the NPS has done

(or refused to do) t

o date can be deem

ed the “consummation” of its decision making process. See, e.g. , City of San Di ego v. Whitman , 242 F.3d 1097, 1101 (9 th Cir. 2001) (holding that an EPA opinion letter did not constitute “final agency action” with respect to the appellant’s then unfiled application for re

newal of a mod

ified National Pol

lutant Discharge E

limination System per

mit because the

re were severa

l administrativ

e steps that necessa

rily would be taken before the application, once filed, would be conclusively approved or denied); Mobil Exploration & P roducing U.S.,

Inc. v. Dept. of Interior , 180 F.3d 1192, 1198 (10 th Cir. 1999) (holding t

hat a United State s Minerals Management Se

rvice letter did not

represent “f

inal agency ac

tion” because it “served only

to initiate further

proceedings by w

hich the MMS could [conclusively] determine whether Plaintiffs owed roy alties”).22

Similarly , because the agen

cy has done nothing b eyond establishing a committee to review alternatives for the future use and ma nagement of Stiltsville, formulating m

anagement option

s and submitting thos e plans for public com ment, no rights or obligations h ave been fixed by

its behavior, nor ha

s it taken (or refused to take) action so as to impose any legal consequence on any party. It has generated prospect

ive governance propo sals, nothing mor e and nothing less. T

his is precisely the

sort of “tenta

tive” behavior char

acterized by t

he Supreme Co

urt in Bennett as falling short of the “final agency action” bar. 520 U.S. at 178, 117 S. Ct. at 1168. A telling compa

rison may be

made betwee

n the facts of this ca

se and those at issue in Whitman v. A

m. Trucking A

ss’ns , 531 U.S. 457, 478-79, 121 S. Ct. 903, 915, 149 L. Ed. 1 (20 01). Whitman featured a challe

nge to the EPA’ s 1997 revisions to its nationa

l ambient air qu

ality standards for particulate m atter and ozone. The EPA

argued that the Cour

t lacked subject m

atter jurisdicti

on over the challenge because these standards did not represent reviewable “final agency action.” In rej ecting this contention, the Supreme Court said: Only if the “

EPA has rendere

d its last word on the m

atter” in question, is its acti

on “final” and t

hus reviewable. That standard is satisfied here. The EPA’s “decisionm aking process,” which began with the 1996 proposal a

nd continued with the r

eception of public comments,

concluded when the a

gency, “i n light of [these23

comments] ,” and in conjuncti on with a correspond

ing directive from the White House, adopted the interpretation . . . at issue here. Since that interpretation

issued, the EPA h

as refused in subseque

nt rulemakings to reconsider it, explaining to disappointed commenters that its earlier decis ion was conclusive

. Id. (quoting Harrison v. PPG Indus., Inc. , 446 U.S. 578, 586, 100 S. Ct. 1889, 1894, 64 L. Ed. 2d

525 (1980)) (other c

itations omitted) . In the present c ase, by contrast, the NP S has yet to sele ct any of the fou

r managem

ent plans and, indee

d, remains busily engaged in t he process of chartin g the course of Stilt sville’s future. Although the NPS ha

s completed its r

eceipt of public com

mentary on

its four alternatives, as

the EPA had in Whitman , it has yet to “ adopt” one of them. Thus, the critical step th

at rendered the E

PA’s standards r

eviewable in Whitman

is absent here. Nothing remotely resembling the NPS’ s final word on this matter has been rendered. To the extent that a

ppellants suggest that t

he length of the NPS ’s inaction in this case renders t

hat inaction review

able, we are unp ersuaded. We a gree, as a general matter, that an administrative agency cannot legitim ately evade judicial review forever by continually postponing any consequence-laden action and then challenging federal jurisdiction on “final ag ency action” grounds. See, e.g. , Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001) (“As this court has noted in the past, where an agency is under an unequivocal statutory duty to act, failure24

so to act constitutes,

in effect, an af

firmative ac

t that triggers ‘f

inal agency ac

tion’ review. Wer

e it otherwise, a

gencies could effe

ctively prevent

judicial review

of their policy det

erminations by

simply ref

using to take final ac

tion.”) (citation

s and internal punctuation o

mitted); Sierra Club v. Thomas , 828 F.2d 783, 793 (D.C. Cir. 1987) (noting th

at to deem unre

viewable an agenc

y’s withholdin

g of action that would be reviewable under the APA could be to permit the agency to “f orever evade our review”). In this case, howe

ver, the NPS has

not forestalled dec

isive action regar

ding Stiltsville’s fut

ure such as would re

nder its inaction re

viewable. As w

e have explained, not all of

the delay in im

plementing a m

anagement plan

is attributable to the NPS; betwe

en November 29 , 2000 and April 1, 2 001 appellee was ex plicitly barred by judi

cial order and legi slative mandate from taking any

action with respect to the Stilt

sville buildings. Addi

tionally, as w

e also have discussed,

the NPS has promu

lgated, and recei

ved public comm

ent on, four ma

nagement alternatives for the structures and a DEIS pert aining to each of th ese options. Finally and notably, appellee a ssures us that it will

reach a final dec

ision regarding the future of the St

iltsville buildings by

“mid-May

” of this year.Thus, the NPS is not presently “withh[oldi ng] or . . . delay[ing]” final action at all. 5 U.S.C. § 706(1). Moreover, it is evi dent that the plan that

the NPS ultim

ately adopts wi

ll25

satisfy the concerns raised by appellants; none of the four alternatives that appellee is consider

ing provide for the co

ntinued private occupancy of the Stiltsville buil dings. In sum, the NP S has undertaken -- but has not concluded -- the process of selecting and im

plementing a m

anagement plan

for the buildings that c

omprise Stiltsville. Beca

use appellee has not c

ompleted this unde

rtaking, the action

s that it has taken to date can

not be deemed the

consummati

on of its decisionm

aking process, and accordingly the Bennett test for “fina

l agency action”

is unsatisfied in this case. By contrast, because the NPS is (albei

t after a lengthy

period of inactivity) pre sently engaged in the aforemen

tioned planning process , we are not confronted with reviewable administrative inaction. Accordingly, we lack subject matter juri sdiction over all of a ppellants’ APA

claims, i.e ., those alleging violations of the Org

anic Act, NEP

A, General Ma

nagement Plan and numerous regulations that atte

nd these provisions. We stress, how

ever, that our opini

on should not be construed as tacit approval of any f

uture inaction on the p art of the NPS vis -a-vis the form ulation and implementa tion of a fi nal management plan for th e Stiltsvi lle build ings. We agree with the par

ties that appellee’ s proposed decisionm aking timefra

me is reasonable, seeing n o reason (barring any unforseen external infl uence, e.g.,26

another judicial o

r legislative decr

ee or some em

ergency) why

a final manage

ment plan for Stiltsville

cannot be decisively

implement

ed by the start of

June of this year. Should this matter not be finally resolved by then, N PCA and TAS may renew their APA

claims. Based on th ese conclu sions, we fi nd it unne cessary to ad dress appe llee’s contentions regardin

g ripeness or the appl

icability of 5 U .S.C. § 701(a) (2) in this case. Indeed, w

e offer no opinion as t

o the merits of the district court’ s holding regarding the APA’s “comm itted to agency discretion” provision. However, because the “final agency action” requirement im plicates federal subject matter jurisdiction, the

district court’s

entry of sum

mary jud gment for the N

PS on appellants’ APA

claims was im

proper as a procedu

ral matter.This is so because “[i]f the c ourt has no jurisdic

tion, it has no power

to enter a judgm

ent on the merit

s and must dismiss the action.” 10A Charles Alan Wright, Arthur R.Miller, & Mary Kay Kane, F ederal Practice and Procedure § 2713,

at 239 (3d ed. 1998); see also Whitt v. Sherm

an Int’l Corp. , 147 F.3d 1325, 1333 ( 11 th Cir. 1998) (holding that because “fed

eral jurisdiction

cannot be found, . .

. the district cour

t’s entry of summary judgment was

a nullity”). I

nstead of entering su

mmary judgment in fa

vor of appellee, the dist rict court should have dismissed appell ants’ APA claims, sua sponte if necessary, pursuant to Fed. R. Civ. P. 12(h)(3). Accordi ngly, although we4 Of course, when we discuss a “Fif

thAmendment equal p

rotection” claim

, we actually are concerned

with a Fourteenth Amendment equal protection claim that has be en “r everseincorporated” into the Fifth Amendment’s Due Process Clause. Se e B olling v. Sharpe , 347 U.S. 497, 499-500, 74 S. Ct. 693, 694-95, 98 L. Ed. 884 (1954); Fernandez-Bernal v. Attorney Gen. , 257 F.3d 1304, 1312 (11 th Cir. 2001) (“[T]he Due Process Clause of the Fifth Amendment incorporates the guarantees of equal protect ion.”); Rodriguez ex rel. Rodriguez v. United States , 169 F.3d 1342, 1348 (11 th Cir. 1999) (discuss i ng “the Due Process Clause of the Fifth Amendment []and the equal protection principles it incorporates[]”).

27 agree with the cour

t’s conclusion rega

rding the justiciability of these c laims, although for wholly

different reason

s, we vacate its order of summ ary judgm

ent and remand to the

district court with

instructions to dism

iss these claim

s pursuant to Fed. R. Civ. P . 12(h)(3), whi ch provides that “ [w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” See alsoFed. R. Civ. P . 12(b)(1) (providing for the dismissal of an action upon motion of a party where the court lacks jurisdiction over the subject matter of the dispute) .

B. Notably, howe

ver, this does not dispose of appellants’ equal protection claim; 4 because this claim is brought directly

under the Due Process Clause of the Fifth Amendment, see Davis v. Passman , 442 U.S. 228, 242-43, 99 S. Ct. 2 264, 2275-76, 60 L. Ed.846 (1979), and not unde r the APA, the “

final agency a

ction”28

requirement is inappli cable to it. See generally Ukiah Valley Med. Ctr. v. FTC , 911 F.2d 261, 264 n.1 (9 th Cir. 1990) (“ [A] finding of f inality, or of an applicable exception, is essen

tial when the court ’s reviewing aut hority depends on on

e of the many statut

es permitting a

ppeal only of “

final” agency action, such as § 10 of the APA, 5 U.S. C. § 704.”). Ac cordingly, we

review the distric

t court’s order o f summary judgment for appellee on this cl aim separately. Ultimately, we conclude that although the district court erred by finding that appellants lack standing to advance their equal protection challenge -- and that federal subject

matter jur

isdiction consequently

exists over this clai

m -- the challenge is unavailing on its merits. Thus, we affirm the district court’s sum mary judgment as to t

his claim, alb eit on grounds other tha n those on which it rel

ied. In Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2 d 351 (1992) , the Supreme Court set forth the test for Article III standing. First, t

he plaintiff mu

st have suffered a

n “injury in fact,” or “

an invasion of a legally protected interest which is . . . concrete and particularized.” Id. at 560, 112 S. Ct. at 2136. Second, the plaintiff must demonstrate the existence of a causal connection between the injury and the condu ct complained of, see id. , and fin ally, it is necessary to establ ish that it is “‘likely,’ as oppos ed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Id. at 561, 112 S. Ct. at29

2136 (quoting Simon v. East ern Ky. W

elfare Rights Or

g. , 426 U.S. 26, 41-42, 96 S. Ct. 1917, 1926, 48 L . Ed. 2d 450 (1976)) . Furthermor e, where a plain

tiff seeks prospective injunc

tive relief, it m

ust demonstrate

a “real and im

mediate threa

t” of future injury in order to s atisfy the “injury in fact” requirement. City of Los Angeles v. Ly

ons , 461 U.S. 95, 1 03-04, 103 S. Ct. 1 660, 1665-66, 75 L. Ed. 2d 675 (1983); Wooden v. Bd. of Regents , 247 F.3d 1262, 1283- 84 (11 th Cir. 2001). In this case, the di strict court found tha t appellants’ equa

l protection claim failed to sati sfy Defenders of Wildlife ’s first prong, characterizing it as having been brought on behalf of “

all . . . me mbers of the publ

ic, locally an

d nationally, w

ho wish to utilize the S

tiltsville structure s and to have an equal o pportunity for enjoyment of [Biscayne National] Park and its resources.” The court reasoned that because NPCA and TAS sought to vindicate the rights of the public as a whole, as opposed to those possesse d by their me

mbers specifi

cally, they

had failed to demonstrate the existence of a particularized harm such as is n

ecessary to es

tablish Article III standing. See Defenders of Wildlife , 504 U.S. at 573-74, 112 S. Ct. at 2143 (“We ha

ve consistently he

ld that a plaintiff r

aising only a gene

rally availabl

e grievance about gov ernment -- cla iming only har m to his and ev ery citizen’s interest in proper application of the Constitution and laws, and seeking relief that30

no more directly and tangibly benefits him than it does the public at large -- does not state an Article III c ase or controversy.”). Appellants argue that the district court mischaracterized their claim. They point to their submission of “unrebutted affidavits . . . to the [d]istrict [c]ourt which attest to the injur

y that each indivi

dual membe

r [of these organiz

ations] suffers by the government’ s unlawful actions. ” They then ar gue, based on their m

embers’ satisfaction of the Article III sta nding test, that they

enjoy associa

tional standing under Hunt v. Washi ngton Sta te Apple Adv er. Comm’n , 432 U.S. 333, 343, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383 (1977). After considering these arguments, we conclude that the district court erred in dismissing appe

llants’ Fifth Am

endment equal pr

otection claim

for lack of standing. Prelim

inarily, we note that because the constitutional standing

doctrine stems directly from Article III’s “case or contro versy” requirement, see Vermont Agency of Na

tural Res. v. Un

ited States ex rel.

Stevens , 529 U.S. 765, 771, 120 S. Ct. 1858, 1861-62, 146 L. Ed. 2d 836 (2000), this issue implicates our subject matter jurisdiction, and accordingly must be addressed as a threshold m atter5 We make this point because on appeal appellee does not defend the district court’s standing determination, op

ting instead to ar

gue the merits of

the equal protec

tion claim. 31 regardless of whe

ther it is raised by

the parties. 5 Juidice v. Vail , 430 U.S. 327, 331, 97 S. Ct. 1211, 1215, 51 L. Ed. 2d 376 (1977). It is true that in the ir complaint NPCA and TAS allege h arm to “all . . . members o f the public, local ly and nationally

[other than the pre sent Stiltsville occupants], who

wish to utilize the S

tiltsville structure s.” Moreover, i t is unquestionable -- and

indeed, appellants

do not argue contrar

ily -- that take

n alone this allegation i s insufficient to es tablish Article III sta nding. See Defenders of Wildlife , 504 U.S. at 573-74, 112 S. Ct. at 2143. However, at the summ ary judgment stage of litigation -- as in the context of a factual challenge to federal subject matte

r jurisdiction under

Fed. R. Civ. P . 12(b)(1) -- w e are obliged to consider not only t

he pleadings, but to e

xamine the rec

ord as a whole to det

ermine whether we are empowered to adjudicate the m atter at hand. Fed. R. Civ. P. 56(c) (requiring the cour

t to consider “th

e pleadings, depositi

ons, answers to interrogatories,

and admissions on f

ile, together wit

h the affidavits, i

f any,” in adjudicating a sum

mary jud gment motion

); Garcia v. Copenh

aver, Bell & Assocs. , 104 F.3d 1256, 1261 (11 th Cir. 1997) (“ ‘“Factual attacks” . . . c

hallenge “the existence of subje

ct matter j urisdiction in fact, irrespective of th

e pleadings, and32

matters outs ide the pl eadings, s uch as test imony and affid avits, are c onsidered .”’” (quoting Lawrence v. Dunbar , 919 F.2d 1525, 1529 ( 11 th Cir. 1990))). In this case, prior

to the filing of appel

lee’s summ

ary judgm

ent motion appellants submitted the aforementioned affidavits. The affiants were several NPCA and TAS members w ho had visited Biscay

ne National Park (

and specifically the area that inclu

des Stiltsville) wi

th frequencies ra

nging from once p er month to fifty time s per year, e

ach of whom indi

cated an intent to m

aintain the frequen

cy of these visits in the fut

ure. Each aff

iant specifically

averred that his or

her lack of access to Stiltsvill

e or its surrounding en

virons impairs hi s or her recreat ional and aesthetic enjoyment of the park

. They further alleged that the injuries they suffer as a result of the NP S’s failure to di scontinue the exclusiv e private use of the structures is continually present when they are at or near Stiltsville. These statem

ents satisfy the

requirement t

hat the plaintiffs su

ffer “concr

ete and particularized” harm. Defenders of Wildlife , 504 U.S. at 560, 112 S. Ct. at 2136; see also Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc. , 528 U.S. 167, 183, 120 S. Ct. 693, 705, 145 L. Ed. 2d 610 (2000) (“We have held that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area

will be lessened’ by the challenge d activity.” (

citing Sierra Club33

v. Morton , 405 U.S. 727, 735, 92 S. Ct. 1 361, 1366, 31 L. Ed. 2d 63 6 (1972))). As in Friends of the Ear

th , the harm suffered by the affiants in this case is more concrete than was

the injury in Lujan v. Nat’l Wi ldlife Fed ’n , 497 U.S. 871, 110 S. Ct. 3177, 111 L. E

d. 2d 695 (1990). In Nat’l Wildlif e Fed’n , the Court held that “the plaintiff

could not survive [a] summary judgment m

otion merely

by offering ‘averments which state only that one of [the organization’s] m embers uses unspecified portions of an immense tract of territory, on som e portions of which mining activity has occurred or probably will occur by virtue of the governm ental action.’” Friends of the Ear th , 528 U.S. at 183 , 120 S. Ct. at 705(quoting Nat’l Wildlife Fed ’n , 497 U.S. at 889 , 110 S. Ct. at 318 9). In this case, by contrast, th

e affiants specify

that they have r

epeatedly tra

veled to the site of th

e Stiltsville buildings in particular

and on each such occa

sion have been harm

ed by their inability to enjoy either th e structures or the na tural environment surro unding them. Nor is t his a ca se in wh ich the affiant s have a sserte d only “‘so me day’ intentions” to return

to the site of their h

arm “wi thout any descrip

tion of concrete plans, or indeed even any specification of when the some day will be.” Defenders of Wildlife , 504 U.S. at 564 , 112 S. Ct. at 213 8 (emphasis in or iginal). The af

fiants state with particu

larity that they

have definite plans t

o continue visiting Stil

tsville with precisely

the same fre

quency that they

have to date, and tha

t in the absence of34

remedial action they will continue to experience the aesthetic and recreational harms described, supra . Quite simpl y, on this recor

d the affiants have satisfied the concern expressed in Lyonsthat plaintiffs seeking prospective injunctive relief establish a “re

al and imme

diate threat” of f

uture harm. 4 61 U.S. at 102, 1 03 S. Ct. at 1665. We also note that t

he second and third pr

ongs of the Article

III standing inquiry plainly are satisfied in this case. Appellants allege that the injuries suffered by their me

mbers stem

directly from

the inability to e

njoy the natura

l features of the area of Biscayne National Park on which the Stiltsville buildings rest, the lack of access to those st

ructures and the ae sthetic harm th at is caused by th

e structures’ presence in the par

k. There is no ques

tion that these harm

s, to varying ex

tents, result from the continued, exclusive private occupancy of the structures, or that they would be remedied, again to different degrees, by the m anagement alternatives being considered by appellee. In doctrinal terms, appellants have demonstrated that the injury

suffered by the

ir member

s “is fairly

traceable to [con

duct] of the defendant” and that “it is likely, as opposed to merely speculative, that the injur y will be redressed by a favorable decision.” Alabama Power Co. v. United States Dept. of Energy

, 307 F.3d 1300, 1308- 09 (11 th Cir. 2002) (citing Defenders of Wildlife , 504 U.S. at 560-61, 112 S. Ct. at 2136).35

Although the foregoing analysis establishes that appellants’ members possess Article III st anding, it does no t confirm that appellant s themselves may sue. As the Suprem

e Court explained in Warth v. Seldin , 422 U.S. 490, 511, 95 S. Ct. 2197, 2211-12, 45 L.Ed. 2d 343 (1975), a nd subsequently refined in Hunt , an association may

sue on behalf of its m

embers when: (a) its members would otherwise h ave standing to su e in their own right; (b) the inter

ests it seeks to prote

ct are germa

ne to the organization’s pur

pose; and (c) neithe

r the claim as serted nor the relief requested

requires the parti

cipation of individual m

embers in the lawsuit.

432 U.S. at 343, 97 S. Ct. at 2441; see also United Food & Commercial Workers Union Local 751 v. Brown Group, Inc. , 517 U.S. 544, 553, 116 S. Ct. 1529, 1534, 134 L. Ed. 2d 758 (1996). This test is satisfi

ed here. First,

because the individua

l affiants allege

concrete ae sthetic an d recreatio nal harms tha t are direct ly traceable t o the NPS’s failure to end the e

xclusive private occ

upancy of the St

iltsville structure s and would be redressibl

e by a change in t

he status quo, they

would have standing to sue in their own righ t. See Defenders of Wildlife , 504 U.S. at 560 -61, 112 S. Ct. at 2136. Second, there is no question that the envi ronmental, a

esthetic and recreational bene

fits that would stem

from the rem

oval or at least discontinuing36

the private occupanc

y of the Stiltsvil

le buildings would be co

nsistent with the organizational purposes of NPCA and TAS. Third, in no way m ust the individual affiants be ma

de parties to this suit

in order to advance the instant equal prot ection claim or to fashion the so rt of prospective injunctive relief soug ht by appellants. Warth , 422 U.S. at 515 , 95 S. Ct. at 2213 (“If in a prop er case the associ ation seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be su

pposed that the rem

edy, if grante

d, will inure to the

benefit of those members of the association actually injured.”). A ccordingly, under controlling precedent NPCA and TAS possess associational standing to advance a Fifth Amendm

ent equal protection

claim on behalf

of their mem

bers. Despite our conclusion that the district c ourt’s standing dete

rmination constituted error,

we nonetheless aff

irm its grant of

summary judgment for appellee when we

consider the me

rits of the equal pro

tection claim a

dvanced by NPCA and TAS. When adjudicating a Fifth Am endment equal protection claim -- which is evaluated i

n precisely the

same mann

er as an analogous cl

aim under the Fourteenth Amendment, see Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225, 1228 n.2, 43 L. Ed. 2d 514 (1975) -- we must determ ine at the outset the degree of scrutin y to which the classificat ion in question is to be subjected. The Supreme

Court has repeate

dly said that whe

n the government

creates a37

“suspect” classification of people, e.g., distinguishes between people along lines of race or aliena

ge, that classification is subject to st rict scrutiny.Under this searching review

, the classificat

ion “ must be held unlawful unless (1) the racial classification serv es a compelling governmenta l interest, and (2) it is narrowly tailored to further that interest.” Johnson v. Bd. of Reg ents , 263 F.3d 1234, 1244 (11 th Cir. 2001) (citing Adarand Constructo rs, Inc. v. Pe

na , 515 U.S. 200, 227, 115 S. Ct. 2097, 2113,

132 L. Ed. 2d 158 ( 1995)) (emphasis original). W here, by contrast, the cla

ssification in questio

n is drawn along “

quasi-suspect” line,

e.g., on the basis of gender, i t will be subject to in termediate scrutiny. Dansk ine v. Miami Dade Fire Dept. , 253 F.3d 1288, 1293 ( 11 th Cir. 2001). Under this s tandard, a “preference may be uph

eld so long as it is substa ntially relate

d to an important governmental objective.” Id. at 1294 (citation o mitted). In this case, howe

ver, neither of th

ese standards are appropriate, as t he classification in que stion is simply between the individua

ls who were party

to the 1976 campsite le

ases and all other pe

ople who wish to enj oy either the por tion of Biscayne Nat

ional Park that cur

rently is occupi

ed by Stiltsville

or the Stiltsville buildings themselv

es. This is neither

a suspect nor a quasi- suspect classifica tion, as those terms have been ex plicated by the Supreme Court. Acco rdingly, we employ only

rational basis revi

ew in evaluating app ellants’ equal pr otection38

challenge. See Romer v. Eva ns , 517 U.S. 620, 631, 116 S. Ct . 1620, 1627, 134 L. Ed. 2d 855 (1996); Yeung v. INS , 76 F.3d 337, 339 (11 th Cir. 1995). Unde r this deferential standa

rd, “we wi

ll uphold the legislativ

e classification [in question] so long as it bears a rational relation to some legitimate end.” Romer , 517 U.S. at 631, 116 S. Ct. at

1627. In making t

his determinat

ion: The first step . . . is identifying a legitimate government purpose -- a goal -- which t he enac ting g overnme nt bod y could have been pursuing. The actual motivations of the enacting governm

ental body are entirely irrelevant . . .. The second step o f rational-basis sc rutiny asks whether a rational basis exists for the enacting governmental body to believe that the legislation would further the hypothesized purpose. The proper inquiry is concerned with the existence of a conceivably ra

tional basis, not whe

ther that basis was

actually considered by the

legislative body.

As long as reasons f

or the legislative classif

ication may

have been considere

d to be true, and the relationship between the classificat ion and the goal is not so attenuated as to re

nder the distinction a

rbitrary or ir

rational, the legislation surv ives rational-basi s scrutiny. Joel v. City of Orlando , 232 F.3d 1353, 1358 ( 11 th Cir. 2000) (quoting Haves v. City o f Miami , 52 F.3d 918, 921-22 (11 th Cir. 1995)) (emphasis in original). The NPS says that to the extent it has created a classification system that treats Stiltsville occupants differently from non-Stiltsville occupants, this serves the government’s goal of “protect[ing] and maintain[ing] the stilted structures pending completing of the [NPS’s] long-term planning process. The tem porary39

preservation of the

status quo to preserve

options in a long-term

planning process . . . is a legitimate government interest.” As we said above, w e need not inquire into the genuinen ess of appellee’s proffer ed explanation of i ts classification , as we have no doubt that the N

PS could have been a

ttempting to tem

porarily m

aintain the structures pendi

ng the selection of one

of its proposed m

anagement alternatives, or

that this desire to keep its options open is a le gitimate governmental end. See generally Romer , 517 U.S. at 632 , 116 S. Ct. at 162 7 (detailing variou s governmental purpos es that have been con sidered legitimate). Moreover, the conn

ection between the

continued private occupancy of the structures and this go al is straightforw ard; the current S

tiltsville leaseholde

rs or their predecessors-in-interest have served as caretakers for the structures for over 25 years, and t

he temporary

continuation of this ar

rangement is a

minimally burdensome m

eans of ensuring that

such caretaking con

tinues pending the implement

ation of a particula

r prospective m

anagement plan . Given this conclusion, our eq ual protection in quiry is at an end. See id. (“In the ordinary case, a law wi

ll be sustained if it can be said to advance a legitimate g

overnment interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.”); Harris v. McRae , 448 U.S. 297, 326, 100 S. Ct. 2671,

2693, 65 L. Ed. 2 d 784 (1980) (noting that in conducting40

rational basis revie

w the only task of

a federal court i s to ensure that the classification in question is “rationally related to a legitimate governmental interest,” and tha

t “[i]t is not

the mission of thi s Court or any oth er to decide whether the balance of co mpeting interests reflec ted . . . is wise social pol icy”). Because there ar

e no disputed factual

questions that cast an

y doubt on the correctness of thi s outcome, the NPS is entitled to su mmary judgment on appel lants ’ Fifth Amendme nt equ al pro tecti on cla im. Acco rding ly we af firm, albeit on different g rounds.

III. To summar

ize, we hold that t

he NPS has neither

taken any actio

n with respect to the prospe

ctive managem

ent of the Stiltsville

structures that ca

n be deemed “f

inal” within the m

eaning of 5 U.S. C. § 704, nor has it e ngaged in a pattern of reviewable administrative inaction. Accordingly, we presently lack subject matter jurisdictio n over each of the claims bro ught by NPCA and TAS under the APA and remand to the di strict court with in structions to dism

iss these claims pursuant

to Fed. R. Civ. P. 12(h)(3); see also Fed. R. Civ. P . 12(b)(1). As a corollary of this disposition, we vacate the district court’s order of final summary judgment as to t

hese claims. Moreover, althoug h the district court e

rred in holding41

that appellants lack

standing to advance the

ir Fifth Ame

ndment equal pro

tection claim, this claim fails on the merits, and as such we affirm the court’s summ

ary judgme nt as t o thi s clai m. AFFIRMED IN PART, VA CATED IN PART AND REM ANDED WITH INSTRUCTIONS.