FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 MARCH 18, 2003 

 THOMAS K. KAHN 

 CLERK

*Honorable Richard F. Suhrheinrich, United States Circuit Judge 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-CV-UUB

NATIONAL PARKS CONSERVATION 

ASSOCIATION, TROPICAL 

AUDUBON SOCIETY,

Plaintiffs-Appellants,

versus

GAIL NORTON, as Secretary of the United

States Department of the Interior, and

FRAN P. MAINELLA, as Director of the

National Park Service,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 18, 2003)

Before CARNES, MARCUS and SUHRHEINRICH*

, Circuit Judges.
1

In 1976 the boundaries of Biscayne National Park had not yet been expanded to encompass

Stiltsville, and the State of Florida was responsible for managing the structures. A more complete

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 buildings presently rest within the boundaries of Biscayne

National Park, and accordingly the National Park Service (“NPS”) is charged with

their administration. However, in 1976, prior to the assumption by the NPS of

responsibility for their management,1 the structures were leased by the State of

Florida to individual occupants for 23 year terms. These leases expressly provided

that upon their expiration on July 1, 1999 the Stiltsville structures would be

removed. As this deadline approached, however, the lessees of these buildings

successfully undertook to extend their exclusive occupancy. 

On May 14, 2001, appellants the National Parks Conservation 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 Florida. They alleged that the NPS’s failure to discontinue 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 Park
2Although this suit technically is brought against both the Department of the Interior (“DOI”)

and the NPS, the NPS simply is a subdivision of the DOI, and accordingly we will refer in this

opinion to the NPS as the appellee in the case.

3

General Management Plan (“General Management Plan”), the National

Environmental Protection Act (“NEPA”), 42 U.S.C. § 4321 et seq., several of the

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 brought under the Due Process Clause of the Fifth

Amendment, NPCA and TAS advanced each of their claims under the

Administrative Procedures Act (“APA”), 5 U.S.C. § 706(1) & 2(A). Appellants

sought to compel the NPS2

 to either remove the structures or make them accessible

to the public.

The district court granted summary judgment to the NPS on all of

appellants’ claims. It reasoned that it lacked subject matter jurisdiction under the

APA because decisions whether and how to comply with the Organic Act, General

Management Plan, NEPA and their implementing regulations are vested entirely

within the NPS’s discretion. Accordingly, the court applied the APA’s

“committed to agency discretion” exception to the rule providing for judicial

review of administrative action. See 5 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 district
4

court also held that appellants lacked standing to advance their Fifth Amendment

equal protection claim. NPCA and TAS appeal both of 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 judgment for appellee on appellants’ equal protection claim. However,

we base both of these results on different grounds than were relied on by the

district court. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir.

2001) (noting that “we may affirm [the district court’s] judgment ‘on any ground

that finds support in the record’” (quoting Jaffke v. Dunham, 352 U.S. 280, 281,

77 S. Ct. 307, 308, 1 L. Ed. 2d 314 (1957))). In particular, we conclude that we

lack subject matter jurisdiction over appellants’ APA claims because the NPS has

not taken any action vis-a-vis the future management of Stiltsville that can be

considered “final” within the meaning of 5 U.S.C. § 704. Furthermore, although

NPCA and TAS enjoy standing to pursue their equal protection claim, that claim is

unavailing on its merits.

I.

“Stiltsville” is a collection of structures constructed on stilts in the shallow

waters of Biscayne Bay south of Key Biscayne, Florida. The buildings are largely
5

weekend homes, restaurants and nightclubs that were built by wealthy individuals

beginning in the 1930s. By 1945 there were 14 stilted structures 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 “Stiltsville.” Over the years, the

majority of these structures have been destroyed by hurricanes, and today only 7

remain in existence. 

During the mid-1960s, the Florida Department of Natural Resources

asserted its jurisdiction over the state-owned submerged lands on which Stiltsville

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

structures at nominal rent. Subsequently, in 1968 Congress established Biscayne

National Monument, the northern boundary of which was approximately five

miles south of the Stiltsville structures. Congress created the Monument “to

preserve and protect for the education, inspiration, recreation, and enjoyment of

present and future generations a rare combination of terrestrial, marine, and

amphibious life in a tropical setting of great natural beauty.” Pub. L. No. 90-606,

§ 1, 82 Stat. 1188 (1968). In 1976, the State of Florida replaced the year-to-year

leases with exclusive “Campsite leases” that expired on July 1, 1999 and set the

rent at $700 per year. These agreements expressly provided that the lessees
6

forfeited all rights to the buildings other than those provided for in the leases, and

that the structures were to be removed by the lessor upon the leases’ expiration. 

In 1980, Congress passed the Biscayne National Park Enabling Act

(“Enabling Act”), 16 U.S.C. §§ 410gg et seq., which converted Biscayne National

Monument into Biscayne National Park. The Park encompasses 71,000 acres that

the Monument did not, including the area in which Stiltsville is located. The

Enabling Act directed the Park Service to “preserve and administer the park in

accordance with the provisions” of the National Park Service Organic Act

(“Organic Act”), 16 U.S.C. § 1, and to develop a revised management plan for the

new park. Accordingly, in 1983 the NPS issued “[t]he General Management Plan,

Development Concept Plan, Wilderness Study and Environmental Assessment”

for Biscayne National Park. This Plan was prepared with public notice and

comment after the completion of environmental review as required by the NEPA,

and it remains in effect. The Plan states that the Stiltsville buildings and

surrounding area will be managed as a natural area for the protection of the natural

resources within the Park, that the leases pertaining to the structures will expire on

July 1, 1999 and cannot be renewed, and that the buildings are to be removed upon

the expiration of the leases. However, the Plan does not specify the method or

exact timing of the removal. In 1985, Florida deeded to the federal government
3Florida donated this land “subject to outstanding easements, reservations, or interests

appearing of record,” thereby ensuring that the 1976 leases remained binding following the transfer.

7

the submerged lands on which Stiltsville sits, an action that resulted in the NPS

becoming landlord for the leaseholders.3

From the execution of the “campsite leases” in 1976 until near the end of

the 23 year lease term, the structures were occupied without incident. However, as

the July 1, 1999 expiration date approached, the leaseholders undertook a series 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 Register of Historic Places. These applications were opposed by

the NPS and both ultimately were denied. Then, on June 29, 1999, with the threat

of a lawsuit looming, appellee and the leaseholders entered into a “Standstill

Agreement” which provided for the continued private occupancy of the buildings

until December 1, 1999. On November 22, 1999, this agreement was extended

through November 29, 2000. Subsequently, bills were introduced in both the 106th

and 107th Congresses to modify the borders of Biscayne National Park to exclude

Stiltsville, see H.R. 1002, 107th Cong. (1st Sess. 2001); H.R. 3033, 106th Cong. (2d

Sess. 2000), but neither of these measures passed. 
8

As the November 29, 2000 extended deadline neared, the Stiltsville

occupants filed two separate actions in the United States District Court for the

Southern District of Florida in an effort to forestall the termination of their leases. 

These were captioned 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 temporary restraining order preventing the NPS from moving to

evict the Stiltsville residents, and then on December 18, 2000 the court converted

the TRO into a preliminary injunction that remained in place until April 1, 2001. 

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

appropriations rider extending the second Standstill Agreement 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 the leaseholders until April 1, 2002. In addition, the agreement

expressly provided that it “does not constitute a transfer or conveyance by the

United States of any right, title, or interest to the Stiltsville Occupants.”
9

Against this background, on May 14, 2001 the National Parks Conservation

Association and the Tropical Audubon Society filed this suit under the APA, 5

U.S.C. § 706(1) & (2)(A), and the Due Process Clause of the Fifth Amendment. 

They alleged that the NPS’s repeated acquiescence in the Standstill Agreements

and other failures to evict the Stiltsville leaseholders upon the expiration of the

campsite leases were tantamount to the grant of an exclusive lease to the

buildings’ occupants. Appellants claimed that this inaction by the NPS violated

the Organic Act, the General Management Plan, the NEPA, several administrative

regulations that attend these provisions and the equal protection component of the

Fifth Amendment Due Process Clause. The parties filed cross motions for

summary judgment, and although the district court denied appellants’ motion it

granted summary judgment in favor of the NPS. The court reasoned that although

the APA provides for judicial review of agency action that is final or that is

specifically made reviewable by statute, there are two notable statutory exceptions

to this general proposition. Under 5 U.S.C. § 701(a), judicial review is

unavailable where “(1) statutes preclude judicial review; or (2) agency 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 that
10

plaintiffs alleged the NPS to have violated, which left as potentially applicable

only the exception codified 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 drawn so that a court would have

no meaningful standard against which to judge the agency’s exercise of

discretion.” 470 U.S. at 830, 105 S. Ct. at 1655. Relying on Heckler’s exposition

of the “committed to agency discretion” exception, the district court in this case

determined that none of the statutory provisions that allegedly had been violated

by the NPS contained a standard that was sufficiently definite to permit

meaningful judicial review. In fact, the district court held that “‘Congress

delegated the entire area of parks management to the’ Secretary of the Interior.” 

District Court’s opinion at 11 (quoting Maloney v. Sheehan, 453 F. Supp. 1131,

1140 (D. Conn. 1978)). Although the court “acknowledge[d]” appellants’

contention that the Organic Act supplies a meaningful standard for judicial review,

it held that this Act “merely establishes a series of general directives to” promote

and regulate the National Parks. The Organic Act, the court continued, is silent as

to the means by which this promotion and regulation are to be realized. The

district court also noted that the only discernible congressional policy regarding

the Stiltsville leases is consistent with the NPS’s inaction, as evidenced by
11

Congress’s direction to extend the Standstill Agreement until March 21, 2001. 

Based on this analysis, the court concluded that neither the Organic Act, the

General Management Plan nor the NEPA supplies a meaningful standard against

which to review appellees’ failure to evict the Stiltsville occupants. As such, it

held that appellants’ claims sounding in the violation of these statutes were

unreviewable by a court. As for their equal protection claim, the district court held

that NPCA and TAS lacked standing to vindicate the interest of all members of the

public in fully enjoying Biscayne National Park. Accordingly, it determined that it

lacked subject matter jurisdiction over this claim. 

Based on the foregoing analysis, the district court granted summary

judgment in favor of the NPS, and it is from this order that NPCA and TAS

presently appeal. On appeal, NPCA and TAS argue that this case is readily

distinguishable from Heckler, where the FDA was held to have absolute discretion

whether to undertake enforcement activities, as the NPS is not afforded discretion

under the Organic Act, General Management Plan or NEPA. As a corollary of this

argument, appellants note that the exception codified at 5 U.S.C. § 701(a)(2) is

narrow in scope, and contend that these enactments do provide a meaningful and

altogether sufficient standard against which to review appellees’ inaction. They

also assert that the district court erred by holding that they lack standing to
12

advance their Fifth Amendment equal protection claim, as they seek not to

vindicate the rights of the public at large, but rather of their membership

specifically.

In response, appellees advance three primary arguments. First, seeking to

analogize their inaction to the inaction of the FDA that was at issue in Heckler,

they characterize their failure to terminate the Stiltsville leases as a wholly

discretionary decision not to exert their enforcement power. As such, they say,

this decision is entirely unreviewable by a court under § 701(a)(2). Second,

appellees assert that judicial review may be had only of final agency actions, and

that their decision not to evict the Stiltsville leaseholders is non-final. Finally,

they contend that appellants’ claims are not ripe. Although the NPS does not

defend the district court’s determination that appellants lack standing to advance

their Fifth Amendment equal protection claim, it argues that this claim is

unavailing on its merits.

Before evaluating the central issues in this lawsuit, we observe that since

the inception of this action the NPS has taken several meaningful steps toward the

implementation of a permanent management plan for the Stiltsville structures. In

particular, appellee asserts that as the Bay Chateau and Miami Springs Power Boat

Club litigation proceeded it began a “comprehensive and multi-faceted process for
13

reviewing the management of park resources, including Stiltsville, and 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 environmental

impact statement (“DEIS”). See Intent to Prepare a Draft Environmental Impact

Statement for the Stiltsville Management Plan, Biscayne National Park, 66 Fed.

Reg. 65,989, 65,989-90 (Dec. 21, 2001). In this notice the NPS described its

forthcoming plan as “guid[ing] public use and management of [the buildings],” id.

at 65,989, with the attendant DEIS evaluating the potential environmental impacts

associated with the management options being considered. The NPS also points to

its establishment of a 22 member committee (which, notably, included a

representative of TAS) to review alternatives for the future use and management

of the Stiltsville structures. This committee held several public meetings during

2001 and 2002, see Meeting Notice, 67 Fed. Reg. 34,951, 34,951 (May 16, 2002)

(announcing a May 29, 2002 public hearing); Notice of Intent, 67 Fed. Reg.

42,280, 42,280 (June 21, 2002) (noting that public hearings on Stiltsville had been

conducted on September 24th and 25th, 2001), and ultimately submitted a report to

the NPS. 
14

Most importantly, roughly 6 weeks prior to oral argument in this case

appellee promulgated both the planned amendment to the General Management

Plan, in which it outlines four management alternatives for Stiltsville, and a DEIS

that evaluates each of these options. See Notice of Availability, 67 Fed. Reg.

71,980, 71,981 (Dec. 3, 2002) (announcing the availability of these documents);

Biscayne National Park General Management Plan Amendment and Draft

Environmental Impact Statement, available at

http://www.nps.gov/bisc/stiltsville/stiltsvillewhatsnew.htm (last visited 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 timeframe for an

ultimate, binding decision as to the prospective management of the structures. 

Notably, the NPS says that it anticipates making a final decision by “[m]id-May,”

and appellants have indicated this timeframe is a reasonable one from their

perspective. 

Against this background, we address the merits of the parties’ arguments.
15

II.

We review a summary judgment ruling de novo, applying the same legal

standard used by the district court. See Johnson v. Bd. of Regents, 263 F.3d 1234,

1242-43 (11th Cir. 2001). In conducting this examination, we view the materials

presented and all factual inferences in the light most favorable to the non-moving

party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608,

26 L. Ed.2d 142 (1970). Summary judgment is appropriate where “there is no

genuine issue as to any material fact” and “the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). The burden of demonstrating

the satisfaction of this standard lies with the movant, who must present “pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any” that establish the absence of any genuine, material factual

dispute. Id. 

A.

As a general rule, actions taken by federal administrative agencies are

subject to judicial 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 (1967), overruled on other
16

grounds, Califano v. Sanders, 430 U.S. 99, 105, 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 jurisdiction over administrative action where “(1) statutes preclude

judicial review; or (2) agency action is committed to agency discretion by law.” 

Notably, these are not the only circumstances under which federal courts cannot

review an agency’s acts; as is especially relevant in the present context, federal

jurisdiction is similarly lacking when the administrative action in question is not

“final” within the meaning of 5 U.S.C. § 704. See Independent Petroleum Ass’n

of Am. v. Babbitt, 235 F.3d 588, 594 (D.C. Cir. 2001) (“‘[T]he requirement of a

final agency action has been considered jurisdictional. If the agency action is not

final, the court therefore cannot reach the merits of the dispute.’” (quoting DRG

Funding Corp. v. Sec. of Hous. & Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir.

1996))). This section provides in pertinent part that “[a]gency action made

reviewable by statute and final agency action for which there is no other adequate

remedy in a court are subject to judicial review. A preliminary, procedural, or

intermediate agency action or ruling not directly reviewable is subject to review on

the review of the final agency action.” 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 “final”: First, the action must mark the “consummation”

of the agency’s decisionmaking process, -- it must not be of a merely

tentative or interlocutory nature. And second, the action 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 Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S. Ct. 203, 209, 27 L. Ed. 2d

203 (1970)); see also Darby v. Cisneros, 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 County Reg’l

Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193, 105 S.

Ct. 3108, 3120, 87 L. Ed. 2d 126 (1985))); Franklin v. Massachusetts, 505 U.S.

788, 797, 112 S. Ct. 2767, 2773, 120 L. Ed. 2d 636 (1992) (“The core question [in

the finality determination] is whether the agency has completed its decisionmaking

process, and whether the result of that process is one that will directly affect the

parties.”). By contrast, “the Supreme Court has defined a nonfinal agency order as

one that ‘does not itself adversely affect complainant but only affects his rights
18

adversely on the contingency of future administrative action.’” American

Airlines, Inc. v. Herman, 176 F.3d 283, 288 (5th Cir. 1999) (quoting Rochester Tel.

Corp. v. United States, 307 U.S. 125, 130, 59 S. Ct. 754, 757, 83 L. Ed. 1147

(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 from two previous decisions in which the Court had held the

administrative action in question to be non-final under § 704. See 520 U.S. at 178,

117 S. Ct. at 1168-69 (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 was the

Secretary of Commerce’s presentation to the President of a report

tabulating the results of the decennial census; our holding that this did

not constitute “final agency action” was premised on the observation

that the report carried no direct consequences and served more like a

tentative recommendation than a final and binding determination. 

And in the latter case [Dalton], the agency action in question was

submission to the President of base closure recommendations by the

Secretary of Defense and the Defense Base Closure and Realignment

Commission; our holding that this was not “final agency action”

followed from the fact that the recommendations were in no way

binding on the President, who had absolute discretion to accept or

reject them. 
19

Id. (internal citations and punctuation omitted). The Court concluded in Bennett

that § 704’s “final agency action” requirement was satisfied in that case because

“[u]nlike the reports in Franklin and Dalton, which were purely advisory and in no

way affected the legal rights of the relevant actors, the Biological Opinion at issue

here has direct and appreciable legal consequences.” 520 U.S. at 178, 117 S. Ct.

at 1169.

Upon applying these general principles to the facts of this case, we conclude

that the NPS’s failure to discontinue the private occupancy of the Stiltsville

structures cannot be considered “final agency action” within the meaning of § 704. 

Preliminarily, we note that although appellee may have acted less than

expeditiously in its planning for Stiltsville’s future since the expiration of the

campsite leases on July 1, 1999, not all of the blame for the delay in implementing

a management plan can be properly attributed to the NPS. Indeed, from

November 29, 2001 through April 1, 2002, appellee was expressly barred by

judicial order and subsequently barred by both judicial order and legislative

mandate from disturbing the Stiltsville occupants’ exclusive access to the

structures. Even had the NPS been disposed to act during this period it was

forbidden from doing so. 
20

Moreover, as we have explained at some length, the NPS is actively

planning the prospective management of Stiltsville. Specifically, it has crafted

four management alternatives for Stiltsville and a draft EIS that evaluates each of

these options. See Biscayne National Park General Management Plan Amendment

and Draft Environmental Impact Statement, available at

http://www.nps.gov./bisc/stiltsville/stiltsvillewhatsnew.htm. This document is 238

pages long, and plainly reflects a great deal of care and effort in its formulation. 

We find it notable that none of the four options being considered 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 it has made no final decision, it is

indisputable that the NPS is actively engaged in planning, and has set an

anticipated date for resolving, Stiltsville’s future, and none of the management

alternatives under active consideration would maintain the status quo that

appellants find to be objectionable.

Under these circumstances, we cannot conclude that the NPS has taken any

final action or engaged in a pattern of inaction that can be said to “mark the

‘consummation’ of the agency’s decisionmaking process” or to be “one by which

‘rights or obligations have been determined,’ or from which ‘legal consequences
21

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 2543 (holding that administrative

action will be considered “final” only if the agency “has arrived 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

management alternatives will soon be selected and implemented. As such, nothing

that the NPS has done (or refused to do) to date can be deemed the

“consummation” of its decisionmaking process. See, e.g., City of San Diego v.

Whitman, 242 F.3d 1097, 1101 (9th Cir. 2001) (holding that an EPA opinion letter

did not constitute “final agency action” with respect to the appellant’s then unfiled

application for renewal of a modified National Pollutant Discharge Elimination

System permit because there were several administrative steps that necessarily

would be taken before the application, once filed, would be conclusively approved

or denied); Mobil Exploration & Producing U.S., Inc. v. Dept. of Interior, 180

F.3d 1192, 1198 (10th Cir. 1999) (holding that a United States Minerals

Management Service letter did not represent “final agency action” because it

“served only to initiate further proceedings by which the MMS could

[conclusively] determine whether Plaintiffs owed royalties”).
22

Similarly, because the agency has done nothing beyond establishing a

committee to review alternatives for the future use and management of Stiltsville,

formulating management options and submitting those plans for public comment,

no rights or obligations have been fixed by its behavior, nor has it taken (or

refused to take) action so as to impose any legal consequence on any party. It has

generated prospective governance proposals, nothing more and nothing less. This

is precisely the sort of “tentative” behavior characterized by the Supreme Court in

Bennett as falling short of the “final agency action” bar. 520 U.S. at 178, 117 S.

Ct. at 1168. 

A telling comparison may be made between the facts of this case and those

at issue in Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 478-79, 121 S. Ct.

903, 915, 149 L. Ed. 1 (2001). Whitman featured a challenge to the EPA’s 1997

revisions to its national ambient air quality standards for particulate matter and

ozone. The EPA argued that the Court lacked subject matter jurisdiction over the

challenge because these standards did not represent reviewable “final agency

action.” In rejecting this contention, the Supreme Court said: 

Only if the “EPA has rendered its last word on the matter” in

question, is its action “final” and thus reviewable. That standard is

satisfied here. The EPA’s “decisionmaking process,” which began

with the 1996 proposal and continued with the reception of public

comments, concluded when the agency, “in light of [these
23

comments],” and in conjunction with a corresponding directive from

the White House, adopted the interpretation . . . at issue here. Since

that interpretation issued, the EPA has refused in subsequent

rulemakings to reconsider it, explaining to disappointed commenters

that its earlier decision 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 citations omitted). In the present case, by

contrast, the NPS has yet to select any of the four management plans and, indeed,

remains busily engaged in the process of charting the course of Stiltsville’s future. 

Although the NPS has completed its receipt of public commentary on its four

alternatives, as the EPA had in Whitman, it has yet to “adopt” one of them. Thus,

the critical step that rendered the EPA’s standards reviewable in Whitman is

absent here. Nothing remotely resembling the NPS’s final word on this matter has

been rendered.

To the extent that appellants suggest that the length of the NPS’s inaction in

this case renders that inaction reviewable, we are unpersuaded. We agree, as a

general matter, that an administrative agency cannot legitimately evade judicial

review forever by continually postponing any consequence-laden action and then

challenging federal jurisdiction on “final agency 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, failure
24

so to act constitutes, in effect, an affirmative act that triggers ‘final agency action’

review. Were it otherwise, agencies could effectively prevent judicial review of

their policy determinations by simply refusing to take final action.”) (citations and

internal punctuation omitted); Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C.

Cir. 1987) (noting that to deem unreviewable an agency’s withholding of action

that would be reviewable under the APA could be to permit the agency to “forever

evade our review”).

In this case, however, the NPS has not forestalled decisive action regarding

Stiltsville’s future such as would render its inaction reviewable. As we have

explained, not all of the delay in implementing a management plan is attributable

to the NPS; between November 29, 2000 and April 1, 2001 appellee was explicitly

barred by judicial order and legislative mandate from taking any action with

respect to the Stiltsville buildings. Additionally, as we also have discussed, the

NPS has promulgated, and received public comment on, four management

alternatives for the structures and a DEIS pertaining to each of these options. 

Finally and notably, appellee assures us that it will reach a final decision regarding

the future of the Stiltsville buildings by “mid-May” of this year. Thus, the NPS is

not presently “withh[olding] or . . . delay[ing]” final action at all. 5 U.S.C. §

706(1). Moreover, it is evident that the plan that the NPS ultimately adopts will
25

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

appellee is considering provide for the continued private occupancy of the

Stiltsville buildings. 

In sum, the NPS has undertaken -- but has not concluded -- the process of

selecting and implementing a management plan for the buildings that comprise

Stiltsville. Because appellee has not completed this undertaking, the actions that it

has taken to date cannot be deemed the consummation of its decisionmaking

process, and accordingly the Bennett test for “final agency action” is unsatisfied in

this case. By contrast, because the NPS is (albeit after a lengthy period of

inactivity) presently engaged in the aforementioned planning process, we are not

confronted with reviewable administrative inaction. Accordingly, we lack subject

matter jurisdiction over all of appellants’ APA claims, i.e., those alleging

violations of the Organic Act, NEPA, General Management Plan and numerous

regulations that attend these provisions.

We stress, however, that our opinion should not be construed as tacit

approval of any future inaction on the part of the NPS vis-a-vis the formulation

and implementation of a final management plan for the Stiltsville buildings. We

agree with the parties that appellee’s proposed decisionmaking timeframe is

reasonable, seeing no reason (barring any unforseen external influence, e.g.,
26

another judicial or legislative decree or some emergency) why a final management

plan for Stiltsville cannot be decisively implemented by the start of June of this

year. Should this matter not be finally resolved by then, NPCA and TAS may

renew their APA claims.

Based on these conclusions, we find it unnecessary to address appellee’s

contentions regarding ripeness or the applicability of 5 U.S.C. § 701(a)(2) in this

case. Indeed, we offer no opinion as to the merits of the district court’s holding

regarding the APA’s “committed to agency discretion” provision. However,

because the “final agency action” requirement implicates federal subject matter

jurisdiction, the district court’s entry of summary judgment for the NPS on

appellants’ APA claims was improper as a procedural matter. This is so because

“[i]f the court has no jurisdiction, it has no power to enter a judgment on the merits

and must dismiss the action.” 10A Charles Alan Wright, Arthur R. Miller, & Mary

Kay Kane, Federal Practice and Procedure § 2713, at 239 (3d ed. 1998); see also

Whitt v. Sherman Int’l Corp., 147 F.3d 1325, 1333 (11th Cir. 1998) (holding that

because “federal jurisdiction cannot be found, . . . the district court’s entry of

summary judgment was a nullity”). Instead of entering summary judgment in favor

of appellee, the district court should have dismissed appellants’ APA claims, sua

sponte if necessary, pursuant to Fed. R. Civ. P. 12(h)(3). Accordingly, although we
4Of course, when we discuss a “Fifth Amendment equal protection” claim, we actually are

concerned with a Fourteenth Amendment equal protection claim that has been “reverseincorporated” into the Fifth Amendment’s Due Process Clause. SeeBolling 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 (11th Cir. 2001) (“[T]he Due Process Clause of the Fifth Amendment incorporates the

guarantees of equal protection.”); Rodriguez ex rel. Rodriguez v. United States, 169 F.3d 1342, 1348

(11th Cir. 1999) (discussing “the Due Process Clause of the Fifth Amendment []and the equal

protection principles it incorporates[]”).

27

agree with the court’s conclusion regarding the justiciability of these claims,

although for wholly different reasons, we vacate its order of summary judgment

and remand to the district court with instructions to dismiss these claims pursuant

to Fed. R. Civ. P. 12(h)(3), which 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 also Fed. 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, however, 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. 2264,

2275-76, 60 L. Ed. 846 (1979), and not under the APA, the “final agency action”
28

requirement is inapplicable to it. See generally Ukiah Valley Med. Ctr. v. FTC,

911 F.2d 261, 264 n.1 (9th Cir. 1990) (“[A] finding of finality, or of an applicable

exception, is essential when the court’s reviewing authority depends on one of the

many statutes permitting appeal only of “final” agency action, such as § 10 of the

APA, 5 U.S.C. § 704.”). Accordingly, we review the district court’s order of

summary judgment for appellee on this claim 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 jurisdiction consequently exists over this claim -- the

challenge is unavailing on its merits. Thus, we affirm the district court’s summary

judgment as to this claim, albeit on grounds other than those on which it relied.

In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130,

2136, 119 L. Ed. 2d 351 (1992), the Supreme Court set forth the test for Article III

standing. First, the plaintiff must have suffered an “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 conduct complained of, see id., and finally,

it is necessary to establish that it is “‘likely,’ as opposed to merely ‘speculative,’

that the injury will be ‘redressed by a favorable decision.’” Id. at 561, 112 S. Ct. at
29

2136 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.

Ct. 1917, 1926, 48 L. Ed. 2d 450 (1976)). Furthermore, where a plaintiff seeks

prospective injunctive relief, it must demonstrate a “real and immediate threat” of

future injury in order to satisfy the “injury in fact” requirement. City of Los

Angeles v. Lyons, 461 U.S. 95, 103-04, 103 S. Ct. 1660, 1665-66, 75 L. Ed. 2d 675

(1983); Wooden v. Bd. of Regents, 247 F.3d 1262, 1283-84 (11th Cir. 2001).

 In this case, the district court found that appellants’ equal protection claim

failed to satisfy Defenders of Wildlife’s first prong, characterizing it as having been

brought on behalf of “all . . . members of the public, locally and nationally, who

wish to utilize the Stiltsville structures and to have an equal opportunity 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 possessed by their members specifically, they had failed to

demonstrate the existence of a particularized harm such as is necessary to establish

Article III standing. See Defenders of Wildlife, 504 U.S. at 573-74, 112 S. Ct. at

2143 (“We have consistently held that a plaintiff raising only a generally available

grievance about government -- claiming only harm to his and every citizen’s

interest in proper application of the Constitution and laws, and seeking relief that
30

no more directly and tangibly benefits him than it does the public at large -- does

not state an Article III case 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 injury that each individual member [of these organizations] suffers by

the government’s unlawful actions.” They then argue, based on their members’

satisfaction of the Article III standing test, that they enjoy associational standing

under Hunt v. Washington State Apple Adver. 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 appellants’ Fifth Amendment equal protection claim for lack of

standing. Preliminarily, we note that because the constitutional standing doctrine

stems directly from Article III’s “case or controversy” requirement, see Vermont

Agency of Natural Res. v. United 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 matter
5We make this point because on appeal appellee does not defend the district court’s standing

determination, opting instead to argue the merits of the equal protection claim.

31

regardless of whether 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 their complaint NPCA and TAS allege harm to “all . . .

members of the public, locally and nationally [other than the present Stiltsville

occupants], who wish to utilize the Stiltsville structures.” Moreover, it is

unquestionable -- and indeed, appellants do not argue contrarily -- that taken alone

this allegation is insufficient to establish Article III standing. See Defenders of

Wildlife, 504 U.S. at 573-74, 112 S. Ct. at 2143. However, at the summary

judgment stage of litigation -- as in the context of a factual challenge to federal

subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) -- we are obliged to

consider not only the pleadings, but to examine the record as a whole to determine

whether we are empowered to adjudicate the matter at hand. Fed. R. Civ. P. 56(c)

(requiring the court to consider “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,” in

adjudicating a summary judgment motion); Garcia v. Copenhaver, Bell & Assocs.,

104 F.3d 1256, 1261 (11th Cir. 1997) (“‘“Factual attacks” . . . challenge “the

existence of subject matter jurisdiction in fact, irrespective of the pleadings, and
32

matters outside the pleadings, such as testimony and affidavits, are considered.”’”

(quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990))). 

In this case, prior to the filing of appellee’s summary judgment motion

appellants submitted the aforementioned affidavits. The affiants were several

NPCA and TAS members who had visited Biscayne National Park (and specifically

the area that includes Stiltsville) with frequencies ranging from once per month to

fifty times per year, each of whom indicated an intent to maintain the frequency of

these visits in the future. Each affiant specifically averred that his or her lack of

access to Stiltsville or its surrounding environs impairs his or her recreational and

aesthetic enjoyment of the park. They further alleged that the injuries they suffer as

a result of the NPS’s failure to discontinue the exclusive private use of the

structures is continually present when they are at or near Stiltsville.

These statements satisfy the requirement that the plaintiffs suffer “concrete

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 challenged activity.” (citing Sierra Club
33

v. Morton, 405 U.S. 727, 735, 92 S. Ct. 1361, 1366, 31 L. Ed. 2d 636 (1972))). As

in Friends of the Earth, the harm suffered by the affiants in this case is more

concrete than was the injury in Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 110 S.

Ct. 3177, 111 L. Ed. 2d 695 (1990). In Nat’l Wildlife Fed’n, the Court held that

“the plaintiff could not survive [a] summary judgment motion merely by offering

‘averments which state only that one of [the organization’s] members uses

unspecified portions of an immense tract of territory, on some portions of which

mining activity has occurred or probably will occur by virtue of the governmental

action.’” Friends of the Earth, 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 3189). In this case, by contrast, the

affiants specify that they have repeatedly traveled to the site of the Stiltsville

buildings in particular and on each such occasion have been harmed by their

inability to enjoy either the structures or the natural environment surrounding them. 

Nor is this a case in which the affiants have asserted only “‘some day’

intentions” to return to the site of their harm “without any description 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 2138 (emphasis in original). The affiants

state with particularity that they have definite plans to continue visiting Stiltsville

with precisely the same frequency that they have to date, and that in the absence of
34

remedial action they will continue to experience the aesthetic and recreational

harms described, supra. Quite simply, on this record the affiants have satisfied the

concern expressed in Lyons that plaintiffs seeking prospective injunctive relief

establish a “real and immediate threat” of future harm. 461 U.S. at 102, 103 S. Ct.

at 1665. 

We also note that the second and third prongs of the Article III standing

inquiry plainly are satisfied in this case. Appellants allege that the injuries suffered

by their members stem directly from the inability to enjoy the natural features of

the area of Biscayne National Park on which the Stiltsville buildings rest, the lack

of access to those structures and the aesthetic harm that is caused by the structures’

presence in the park. There is no question that these harms, to varying extents,

result from the continued, exclusive private occupancy of the structures, or that

they would be remedied, again to different degrees, by the management alternatives

being considered by appellee. In doctrinal terms, appellants have demonstrated

that the injury suffered by their members “is fairly traceable to [conduct] of the

defendant” and that “it is likely, as opposed to merely speculative, that the injury

will be redressed by a favorable decision.” Alabama Power Co. v. United States

Dept. of Energy, 307 F.3d 1300, 1308-09 (11th 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 standing, it does not confirm that appellants themselves may sue. 

As the Supreme Court explained in Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct.

2197, 2211-12, 45 L. Ed. 2d 343 (1975), and subsequently refined in Hunt, an

association may sue on behalf of its members when: 

(a) its members would otherwise have standing to sue in their own

right; (b) the interests it seeks to protect are germane to the

organization’s purpose; and (c) neither the claim asserted nor the

relief requested requires the participation of individual members 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 satisfied here. First, because the individual affiants allege

concrete aesthetic and recreational harms that are directly traceable to the NPS’s

failure to end the exclusive private occupancy of the Stiltsville structures and

would be redressible by a change in the status quo, they would have standing to

sue in their own right. See Defenders of Wildlife, 504 U.S. at 560-61, 112 S. Ct.

at 2136. Second, there is no question that the environmental, aesthetic and

recreational benefits that would stem from the removal or at least discontinuing
36

the private occupancy of the Stiltsville buildings would be consistent with the

organizational purposes of NPCA and TAS. Third, in no way must the individual

affiants be made parties to this suit in order to advance the instant equal protection

claim or to fashion the sort of prospective injunctive relief sought by appellants. 

Warth, 422 U.S. at 515, 95 S. Ct. at 2213 (“If in a proper case the association

seeks a declaration, injunction, or some other form of prospective relief, it can

reasonably be supposed that the remedy, if granted, will inure to the benefit of

those members of the association actually injured.”). Accordingly, under

controlling precedent NPCA and TAS possess associational standing to advance a

Fifth Amendment equal protection claim on behalf of their members.

Despite our conclusion that the district court’s standing determination

constituted error, we nonetheless affirm its grant of summary judgment for

appellee when we consider the merits of the equal protection claim advanced by

NPCA and TAS. When adjudicating a Fifth Amendment equal protection claim --

which is evaluated in precisely the same manner as an analogous claim 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 determine at the outset

the degree of scrutiny to which the classification in question is to be subjected. 

The Supreme Court has repeatedly said that when the government creates a
37

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

of race or alienage, that classification is subject to strict scrutiny. Under this

searching review, the classification “must be held unlawful unless (1) the racial

classification serves a compelling governmental interest, and (2) it is narrowly

tailored to further that interest.” Johnson v. Bd. of Regents, 263 F.3d 1234, 1244

(11th Cir. 2001) (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115

S. Ct. 2097, 2113, 132 L. Ed. 2d 158 (1995)) (emphasis original). Where, by

contrast, the classification in question is drawn along “quasi-suspect” line, e.g., on

the basis of gender, it will be subject to intermediate scrutiny. Danskine v. Miami

Dade Fire Dept., 253 F.3d 1288, 1293 (11th Cir. 2001). Under this standard, a

“preference may be upheld so long as it is substantially related to an important

governmental objective.” Id. at 1294 (citation omitted). 

In this case, however, neither of these standards are appropriate, as the

classification in question is simply between the individuals who were party to the

1976 campsite leases and all other people who wish to enjoy either the portion of

Biscayne National Park that currently is occupied by Stiltsville or the Stiltsville

buildings themselves. This is neither a suspect nor a quasi-suspect classification,

as those terms have been explicated by the Supreme Court. Accordingly, we

employ only rational basis review in evaluating appellants’ equal protection
38

challenge. See Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct. 1620, 1627, 134 L.

Ed. 2d 855 (1996); Yeung v. INS, 76 F.3d 337, 339 (11th Cir. 1995). Under this

deferential standard, “we will uphold the legislative 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 this determination:

The first step . . . is identifying a legitimate government purpose -- a

goal -- which the enacting government body could have been

pursuing. The actual motivations of the enacting governmental body

are entirely irrelevant . . . . The second step of rational-basis scrutiny

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 rational basis, not whether that basis was actually

considered by the legislative body. As long as reasons for the

legislative classification may have been considered to be true, and the

relationship between the classification and the goal is not so

attenuated as to render the distinction arbitrary or irrational, the

legislation survives rational-basis scrutiny. 

Joel v. City of Orlando, 232 F.3d 1353, 1358 (11th Cir. 2000) (quoting Haves v.

City of Miami, 52 F.3d 918, 921-22 (11th 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 temporary
39

preservation of the status quo to preserve options in a long-term planning process .

. . is a legitimate government interest.” As we said above, we need not inquire

into the genuineness of appellee’s proffered explanation of its classification, as we

have no doubt that the NPS could have been attempting to temporarily maintain

the structures pending the selection of one of its proposed management

alternatives, or that this desire to keep its options open is a legitimate

governmental end. See generally Romer, 517 U.S. at 632, 116 S. Ct. at 1627

(detailing various governmental purposes that have been considered legitimate). 

Moreover, the connection between the continued private occupancy of the

structures and this goal is straightforward; the current Stiltsville leaseholders or

their predecessors-in-interest have served as caretakers for the structures for over

25 years, and the temporary continuation of this arrangement is a minimally

burdensome means of ensuring that such caretaking continues pending the

implementation of a particular prospective management plan. Given this

conclusion, our equal protection inquiry is at an end. See id. (“In the ordinary

case, a law will be sustained if it can be said to advance a legitimate government

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. 2d 784 (1980) (noting that in conducting
40

rational basis review the only task of a federal court is to ensure that the

classification in question is “rationally related to a legitimate governmental

interest,” and that “[i]t is not the mission of this Court or any other to decide

whether the balance of competing interests reflected . . . is wise social policy”). 

Because there are no disputed factual questions that cast any doubt on the

correctness of this outcome, the NPS is entitled to summary judgment on

appellants’ Fifth Amendment equal protection claim. Accordingly we affirm,

albeit on different grounds. 

III.

To summarize, we hold that the NPS has neither taken any action with

respect to the prospective management of the Stiltsville structures that can be

deemed “final” within the meaning of 5 U.S.C. § 704, nor has it engaged in a

pattern of reviewable administrative inaction. Accordingly, we presently lack

subject matter jurisdiction over each of the claims brought by NPCA and TAS

under the APA and remand to the district court with instructions to dismiss 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 these claims. Moreover, although the district court erred in holding
41

that appellants lack standing to advance their Fifth Amendment equal protection

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

judgment as to this claim.

AFFIRMED IN PART, VACATED IN PART AND REMANDED

WITH INSTRUCTIONS.