FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL DIVERSITY, 

a nonprofit corporation; CENTRAL

AZ PADDLERS CLUB,

Plaintiffs-Appellants,

No. 02-16201 v.

D.C. No. ANN M. VENEMAN, Secretary of the

CV 01-00477 WDB United States Department of 

Agriculture; DALE BOSWORTH, ORDER AND

Chief of United States Forest AMENDED

Service; ELEANOR TOWNS, Regional OPINION

Forester, United States Forest

Service, Region Three; UNITED

STATES FOREST SERVICE,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

William D. Browning, District Judge, Presiding

Argued and Submitted

March 11, 2003—San Francisco, California

Filed July 7, 2003

Opinion Withdrawn and

Amended Opinion Filed January 7, 2005

Before: Alfred T. Goodwin, A. Wallace Tashima, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Tashima

211
COUNSEL

Matthew K. Bishop, Western Environmental Law Center,

Taos, New Mexico, for the plaintiffs-appellants. 

Anna T. Katselas, U.S. Department of Justice, Environment &

Natural Resources Division, Washington, D.C., for the

defendants-appellees.

ORDER

Federal appellees’ petition for panel rehearing is granted.

The opinion filed July 7, 2003, and reported at 335 F.3d 849,

is withdrawn and replaced by the amended opinion filed concurrently with this order.

OPINION

TASHIMA, Circuit Judge: 

In our previous opinion, we held that the district court had

jurisdiction to review the claims of the Center for Biological

Diversity and Central Arizona Paddlers Club (together the

“Center”) under § 706(1) of the Administrative Procedure Act

(“APA”), 5 U.S.C. § 706(1), because (1) under the Wild and

Scenic Rivers Act (“WSRA”), 16 U.S.C. § 1276(d)(1), the

United States Forest Service (“Forest Service”) had a mandatory duty to consider potentially eligible rivers in planning for

214 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
the use and development of land resources, and (2) the Forest

Service failed to act pursuant to this mandatory duty. Ctr. for

Biological Diversity v. Veneman, 335 F.3d 849, 857 (9th Cir.

2003). Our conclusion relied on our holding in Montana Wilderness Association, Inc. v. United States Forest Service, 314

F.3d 1146 (9th Cir. 2003), that the Forest Service’s duty to

maintain potential wilderness study areas in their presently

existing wilderness character under the Montana Wilderness

Study Act was a nondiscretionary, mandatory duty that the

Service could be compelled to carry out under § 706(1) of the

APA. Id. at 1151. 

After our opinion was filed, the Supreme Court held in

Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373

(2004) (“SUWA”), that a claim under § 706(1) “can proceed

only where a plaintiff asserts that an agency failed to take a

discrete agency action that it is required to take.” Id. at 2379.

The Court also vacated Montana Wilderness, on which we

relied extensively in reaching our decision in this case, and

remanded that case to this court for further consideration in

light of SUWA. Veneman v. Mont. Wilderness Ass’n, Inc., 124

S. Ct. 2870, 2870 (2004). Because the Court explained in

SUWA that a “failure to consider” certain issues while planning for the use and development of land resources is not a

failure to take discrete agency action, as required for standing

under § 706(1), we now conclude that the Center has not

alleged a failure to take a discrete agency action. 

We have jurisdiction under 28 U.S.C. § 1291, and we hold

that the district court did not err in granting the Forest Service’s motion to dismiss for lack of standing. We reverse,

however, the district court’s denial of the Center’s motion for

leave to amend, and remand with instructions to permit the

Center to amend its complaint.

BACKGROUND

The WSRA created a national system of free-flowing rivers

to be permanently administered as wild, scenic, or recreCENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 215
ational rivers by state agencies. See 16 U.S.C. §§ 1271-1287.

A river is eligible for protection under the WSRA if it is freeflowing and possesses at least one of the outstanding remarkable values set forth in the statute. 16 U.S.C. §§ 1271,

1273(b). The WSRA requires the Secretaries of Agriculture

and the Interior to conduct “specific studies and investigations” to discover rivers eligible for inclusion in the national

wild and scenic rivers system (“WSRS”). 16 U.S.C.

§ 1276(d)(1). Rivers are designated for inclusion in the WSRS

through an act of Congress or an application by a state governor acting pursuant to an act of the state legislature. 16 U.S.C.

§ 1273(a). 

In 1993, in response to a request by the Arizona congressional delegation, the Forest Service conducted three studies

of Arizona’s free-flowing rivers, identifying those streams

and river segments that satisfied the statutory requirements for

inclusion in the WSRS. The Service published its findings in

a 300-page report (the “1993 Report”), which identified 57

rivers and streams that qualified as potential additions to the

WSRS and which provided all of the necessary information to

determine which Arizona streams or river segments met the

WSRA’s criteria for designation. 

In 2001, the Center commenced this action for the Forest

Service’s alleged failure to comply with 16 U.S.C.

§ 1276(d)(1), which directs the government to take rivers and

streams that qualify for inclusion in the WSRS into account

while planning for the use and development of federal land.

Because the WSRA does not provide for a private right of

action, the Center asserted standing under § 706(1) of the

APA, which provides relief for “agency action unlawfully

withheld or unreasonably delayed.” See 5 U.S.C. § 706(1). 

The district court concluded that the Center failed to meet

the requirements of § 706(1) because the Center could not

show that the Forest Service unlawfully withheld agency

action. It reasoned that the Forest Service had no statutory

216 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
duty “to perform a systematic § 1276(d)(1) review before the

revision of a forest plan.” The district court therefore dismissed the action for lack of subject matter jurisdiction. In

addition, concluding that the WSRA imposes no statutory

duty “to perform a systematic § 1276(d)(1) review before the

revision of a forest plan,” the district court denied the Center’s request for leave to amend its complaint, reasoning that

any amendment would be futile. It further noted that any particular project-specific determinations “would be more appropriately brought in a new lawsuit if Plaintiffs wish to

proceed.” The Center timely appealed. 

STANDARD OF REVIEW

We review de novo a dismissal for lack of subject matter

jurisdiction. See Luong v. Circuit City Stores, Inc., 368 F.3d

1109, 1111 n.2 (9th Cir. 2004); City of San Diego v. Whitman,

242 F.3d 1097, 1101 (9th Cir. 2001). We also review de novo

a dismissal without leave to amend. See Thinket Ink Info. Res.,

Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir.

2004). Denial of leave to amend “is improper unless it is clear

. . . that the complaint could not be saved by any amendment.”

Id.

DISCUSSION

The Forest Service argues that (1) the 1993 Report is not

an agency-initiated study that inventories eligible rivers under

the WSRA, and (2) the Center has no standing under

§ 706(1). The Center argues that the district court erred in

denying its motion for leave to amend its complaint. We

address each of these arguments in turn. 

I. The 1993 Report 

[1] The 1993 Report “provides resource information for

potential wild, scenic, and recreational rivers on six National

Forests in Arizona.” In a similar passage, the Report states

CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 217
that its purpose is to provide information on those rivers that

the Forest Service “determine[s] to be potentially eligible for

inclusion in the national wild and scenic rivers systems.” The

1993 Report conforms to the dictates of the WSRA by

expressly identifying the two statutory characteristics of an

eligible river: first, that it is free flowing, and second, that it

possesses at least one “outstanding remarkable value.” See 16

U.S.C. §§ 1271, 1273(b). Furthermore, the rivers included in

the 1993 Report have been listed on the Nationwide Rivers

Inventory, “a register of river segments that potentially qualify as national wild, scenic or recreational river areas” maintained by the National Park Service “in partial fulfillment of

[16 U.S.C. § 1276(d)].” Nationwide Rivers Inventory, available at http://www.nps.gov/ncrc/programs/rtca/nri/states/

az.html. 

[2] For the foregoing reasons, we conclude that the 1993

Report constitutes an agency-initiated inventory of Arizona

rivers potentially eligible for inclusion in the nationwide

WSRS. 

II. “Failure to Act” Under § 706(1) of the APA 

The Forest Service argues that the consideration of potentially eligible rivers in project plans is neither (1) a discrete

agency action, nor (2) an action that the Service is legally

required to take under the WSRA. We limit our consideration

to the Center’s “discrete agency action” claim. 

In SUWA, the plaintiffs asserted that the Bureau of Land

Management (“BLM”) failed to comply with the Federal

Land Policy and Management Act of 1976 (“FLPMA”),

which requires the Secretary of the Interior to manage designated wilderness study areas “ ‘in a manner so as not to

impair the suitability of such areas for preservation as wilderness.’ ” 124 S. Ct. at 2377 (quoting 43 U.S.C. § 1782(c)).

Because FLPMA does not provide a private right of action,

218 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
the plaintiffs sought relief under § 706(1) of the APA. See

SUWA, 124 S. Ct. at 2378. 

[3] The Court concluded that “a claim under § 706(1) can

proceed only where a plaintiff asserts that an agency failed to

take a discrete agency action that it is required to take.” Id.

at 2379. First, the Court explained that the term “failure to

act,” as used in § 706(1), is “a failure to take an agency action

— that is, a failure to take one of the agency actions (including their equivalents) earlier defined in § 551(13).” Id. at

2379. The Court noted that § 551(13) of the APA defined

agency action by listing “five categories of decisions made or

outcomes implemented by an agency — ‘agency rule, order,

license, sanction [or] relief.’ ” Id. at 2378 (quoting 8 U.S.C.

§ 551(13)). 

All of those categories involve circumscribed, discrete agency actions, as their definitions make clear:

“an agency statement of . . . future effect designed

to implement, interpret, or prescribe law or policy”

(rule); “a final disposition . . . in a matter other than

rule making” (order); a “permit . . . or other form of

permission” (license); a “prohibition . . . or taking

[of] other compulsory or restrictive action” (sanction); or a “grant of money, assistance, license,

authority,” etc., or “recognition of a claim, right,

immunity,” etc., or “taking of other action on the

application or petition of, and beneficial to, a person” (relief). 

Id. (quoting 8 U.S.C. § 551(4), (6), (8), (10), (11)). 

The Court further noted that the limitation to discrete

agency action “precludes the kind of broad programmatic

attack” rejected by the Court in Lujan v. National Wildlife

Federation, 497 U.S. 871 (1990). SUWA, 124 S. Ct. at 2379-

80. The Court explained that, in National Wildlife Federation,

the plaintiffs challenged the BLM’s land withdrawal review

CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 219
program, “couched as unlawful agency ‘action’ that the plaintiffs wished to have ‘set aside’ under [§ 706(2) of the APA.]”

SUWA, 124 S. Ct. at 2380 (noting that the Court held in Nat’l

Wildlife Fed’n that plaintiffs could not “seek wholesale

improvement of this program by court decree, rather than in

the offices of the Department or the halls of Congress, where

programmatic improvements are normally made”). The Court

then reasoned that the plaintiffs in National Wildlife Federation “would have fared no better if they had characterized the

agency’s alleged ‘failure to revise land use plans in proper

fashion’ and ‘failure to consider multiple use’ . . . in terms of

‘agency action unlawfully withheld’ under § 706(1), rather

than agency action ‘not in accordance with law’ under

§ 706(2). SUWA, 124 S. Ct. at 2380. 

[4] Second, the Court explained that “the only agency

action that can be compelled under the APA is action legally

required.” Id. at 2379. The Court reasoned that “§ 706(1)

empowers a court only to compel an agency ‘to perform a

ministerial or non-discretionary act,’ or ‘to take action upon

a matter, without directing how it shall act.’ ” Id. (quoting

Attorney General’s Manual on the Administrative Procedure

Act 108 (1947)). The Court explained that, “[t]hus, when an

agency is compelled by law to act within a certain time

period, but the manner of its action is left to the agency’s discretion, a court can compel the agency to act, but has no

power to specify what the action must be.” Id. at 2380. 

The Court then turned to the plaintiffs’ claims and reasoned

that, although the relevant provision of FLPMA “is mandatory as to the object to be achieved” — that is, the management of wilderness study areas in a manner so as not to impair

the suitability of such areas for preservation as wilderness —

“it leaves BLM a great deal of discretion in deciding how to

achieve it.” Id. The Court reasoned that the statute “assuredly

does not mandate, with the clarity necessary to support judicial action under § 706(1), the total exclusion of [off-road

vehicle] use.” Id.

220 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
The Court also rejected the plaintiffs’ assertion that a federal court “could simply enter a general order compelling

compliance with that mandate [of non-impairment], without

suggesting any particular manner of compliance,” reasoning

that “[g]eneral deficiencies in compliance . . . lack the specificity requisite for agency action.” Id. at 2381. The Court

explained that empowering courts to enter general orders

“compelling compliance with broad statutory mandates”

would result in “injecting the judge into day-to-day agency

management” and raises the “prospect of pervasive oversight

by federal courts over the manner and pace of agency compliance with such congressional directives.” Id.

The Court concluded that the APA therefore did not confer

upon the plaintiffs a right to sue for the BLM’s alleged violation of the non-impairment provision of FLPMA. See id. The

Court also reasoned that the BLM land use plans — with

which the plaintiffs alleged the BLM failed to comply —

were not legally binding commitments enforceable under

§ 706(1), and concluded that therefore the courts had no

authority to compel agency compliance with the land use

plans under § 706(1). Id. at 2384. 

The Forest Service argues that, under SUWA, the WSRA’s

statutory directive to consider the 57 potentially eligible rivers

does not involve a discrete agency action, but rather, constitutes only “part of the Forest Service’s decisionmaking process leading to a final agency action, i.e., the issuance or

denial of a permit.” The Service also argues that the Center’s

“failure to consider” claim is a “broad programmatic challenge to the Forest Service’s overall management of the river

areas” of the kind rejected by the Supreme Court in SUWA.

[5] The Court’s reasoning in SUWA compels us to conclude

that the Center does not assert a failure to take a “discrete

agency action.” The complaint alleges that the Forest Service

failed to consider the 57 potentially eligible rivers while planning for the use and development of water and related land

CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 221
resources in the national forests of Arizona. This allegation is

indistinguishable from the one rejected by the Court in

SUWA. There, the Court reasoned that, even if the plaintiffs

in National Wildlife Federation had characterized the agency’s alleged “failure to revise land use plans in proper fashion” and “failure to consider multiple use” in terms of

“agency action unlawfully withheld” under § 706(1) — rather

than agency action “not in accordance with law” under

§ 706(2) — the plaintiffs nonetheless would not have pled a

failure to take a “discrete agency action.” SUWA, 124 S. Ct.

at 2380. 

The Center argues that its failure to consider claim is more

specific than the example set forth in SUWA because (1) its

claim involves only 57 specific rivers, and (2) the Forest Service “either gives, or does not give, consideration to the rivers

while planning,” thus avoiding the danger of requiring “pervasive oversight by federal courts over the manner and pace

of agency compliance,” which the Court warned against in

SUWA. While a duty “to consider” may be more specific and

less discretionary than the duty “ ‘to manage [wilderness

study areas] . . . in a manner so as not to impair the suitability

of such areas for preservation as wilderness,’ ” id. (quoting 43

U.S.C. § 1782(c)), this argument fails sufficiently to distinguish the Center’s claim from the “failure to consider” example rejected by the Court in SUWA. 

[6] Because the Center fails to allege a discrete agency

action that the Forest Service failed to take, the Center has no

standing under § 706(1). See id. at 2385 (sustaining district

court’s dismissal for lack of subject matter jurisdiction).

Given the Supreme Court’s holding in SUWA, we affirm the

district court’s dismissal for lack of subject matter jurisdiction. 

III. Motion for Leave to Amend

The Center argues that the district court erred in denying it

leave to amend its complaint to assert claims for which

222 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
§ 706(1) provides standing. The Center asserts that it has specific information, obtained through Freedom of Information

Act requests, about individual projects in the watersheds of

the 57 rivers at issue, “where the Forest Service has authorized livestock grazing, mining, water projects, and/or timber

harvesting . . . without first taking the rivers’ wild and scenic

status into account.” The Center further argues that, although

it technically could assert issues not pleaded in this case in a

separate suit, the doctrine of res judicata might prevent it from

doing so. 

[7] Although the Court’s reasoning in SUWA apparently

forecloses a general “failure to consider” claim under

§ 706(1), the Center may be able to assert a “discrete agency

action that [the agency] is required to take” under

§ 1276(d)(1) of the WSRA by alleging specific failures of the

Forest Service to consider specific rivers when planning for

specific projects. For example, the Forest Service’s failure to

consider a specific river when granting a license to permit

livestock grazing within the watershed of that specific river

may constitute a failure to take discrete agency action that the

Service is required to take. 

Further, the Center may be able to assert a claim for failure

to act pursuant to (1) other, related provisions of the WSRA,

and (2) the regulations, promulgated by the Departments of

Agriculture and the Interior, interpreting the WSRA. For

example, § 1283(a) of the WSRA provides, 

The Secretary of the Interior, the Secretary of

Agriculture, and the head of any other Federal

department or agency having jurisdiction over any

lands which include, border upon, or are adjacent to,

any river included within the National Wild and Scenic Rivers System or under consideration for such

inclusion, in accordance with section 1273(a)(ii),

1274(a), or 1276(a) of this title, shall take such

action respecting management policies, regulations,

CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 223
contracts, plans, affecting such lands . . . as may be

necessary to protect such rivers in accordance with

the purposes of this chapter. . . . Particular attention

shall be given to scheduled timber harvesting, road

construction, and similar activities which might be

contrary to the purposes of this chapter. 

16 U.S.C. § 1283(a). The Center may be able to allege a failure to take specific, discrete agency actions “respecting management policies, regulations, contracts, [or] plans” that are

“necessary to protect” specific rivers pursuant to § 1283(a).

See id.; see also Wilderness Soc’y v. Tyrrel, 918 F.2d 813,

820 (9th Cir. 1990) (remanding to the district court the factual

question of whether the Forest Service’s grant of permission

to harvest burned timber on federal land adjacent to a river in

the WSRS fulfilled the Service’s obligations under § 1283).

Similarly, the Center may be able to allege a failure to comply

with the regulations promulgated by the Departments of Agriculture and the Interior, which provide that, with regard to rivers potentially eligible for inclusion in the WSRS, agencies

“will include an analysis of alternatives . . . . encompassing

all reasonable proposals for use of the river area including

uses which may be incompatible with designation of the river

area as a component of the national system.” 47 Fed. Reg.

39455, 39458 (Sept. 7, 1982). 

[8] In sum, it is not clear beyond doubt that amendment of

the complaint would be futile. See Thinket Ink Info. Res., 368

F.3d at 106 (explaining that dismissal without leave to amend

is improper unless it is clear that the complaint could not be

saved by any amendment). Further, contrary to the district

court’s belief, dismissal with prejudice may, indeed, preclude

the Center from asserting such claims in a separate proceeding under the doctrine of claim preclusion. See Semtek Int’l

Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505-06 (2001)

(explaining that a dismissal that precludes refiling of the same

claim in the same court is an “adjudication upon the merits”

under Fed. R. Civ. P. 41(b)); Cent. Delta Water Agency v.

224 CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN
United States, 306 F.3d 938, 952-53 (9th Cir. 2002) (explaining that claim preclusion applies where the two suits arise out

of the same transactional nucleus of facts). We therefore

reverse the district court’s denial of the Center’s motion for

leave to amend.

CONCLUSION

The Supreme Court explained in SUWA that a “failure to

consider” certain issues while planning for the use and development of land resources is not a failure to take discrete

agency action, as required for standing under § 706(1).

Because the Center does not allege a failure to take a discrete

agency action, we affirm the district court’s dismissal for lack

of standing under § 706(1). At the same time, however,

because it is not clear that amendment of the complaint would

be futile, we reverse the district court’s denial of the Center’s

motion for leave to amend and remand with instructions to

permit the Center to amend its complaint. Each side shall bear

its own costs on appeal. 

AFFIRMED in part, REVERSED in part, and

REMANDED.

CENTER FOR BIOLOGICAL DIVERSITY v. VENEMAN 225