## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 3 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE OF UTAH, UTAH SCHOOL AND INSTITUTIONAL TRUST LANDS ADMINISTRATION and UTAH ASSOCIATION OF COUNTIES, Plaintiffs-Appellees,

v. BRUCE BABBITT, in his official capacity as SECRETARY OF THE INTERIOR; UNITED STATES DEPARTMENT OF THE INTERIOR; SYLVIA V. BACA, in her official capacity as ACTING DIRECTOR OF THE BUREAU OF LAND MANAGEMENT; UNITED STATES BUREAU OF LAND MANAGEMENT,

Defendants-Appellants,

-------------------------------- SOUTHERN UTAH WILDERNESS ALLIANCE; SIERRA CLUB; NATURAL RESOURCES DEFENSE COUNCIL; WILDERNESS SOCIETY,

Amici-Curiae. No. 97-4015* Honorable Vicki Miles-LaGrange, District Judge for the Western District

of Oklahoma, sitting by designation. -2-

Appeal from the United States District Court

for the District of Utah (D.C. No. 96-CV-870)

Lisa E. Jones, Department of Justice, Washington, D .C. (Gary B. Randall and John A. Bryson, Department of Justice; Paul Smyth, Wendy Dorman and David Grayson, U.S. Department of the Interior, Office of the Solicitor; Lois J. Schiffer, Assistant Attorney General; Scott M. Matheson, Jr., United States Attorney, and Stephen J. Sorenson, Assistant United States Attorn ey, Salt Lake City, Utah, with her on the briefs), for Defendants-Appellants. Constance E. Brooks, C. E. Brooks & Associates, Den ver, Colorado (Michael B. Marinovich, C. E. Brooks & Associates, Denver, Colo rado; Jan Graham, Attorney General for the State of Utah, and Stephen G. Boyde n, Assistant Attorney General, State of Utah, Salt Lake City, Utah; Ronal d W. Thompson and Stephen H. Urquhart, Thompson & Associates, St. George, Utah; John W. Andrews, Special Assistant Attorney General for the Utah Sch ool and Institutional Trust Lands Administration, Salt Lake City, Utah, with he r on the briefs), for PlaintiffsAppellees. Heidi J. McIntosh, Southern Utah Wilderness Allianc e, Salt Lake City, Utah, (Robert B. Wiygul, Sierra Club Legal Defense Fund, Denver, Colorado, with her on the brief), filed an amicus curiae brief for Sie rra Club Legal Defense Fund, Natural Resources Defense Council, and Southern Utah Wilderness Alliance.

Before MURPHY, LOGAN, Circuit Judges, and MILES-LaGRANGE * , District Judge.

MURPHY , Circuit Judge.-3-

This case arises from Department of the Interior S ecretary Bruce Babbitt’s decision to inventory certain public lands in Utah for wilderness characteristics. Defendants appeal from the issuance of a preliminary injunction by the district court on November 15, 1996, enjoining Defendants fr om proceeding further with the inventory. We exercise jurisdiction under 28 U .S.C. § 1292(a)(1). Because we conclude that Plaintiffs lack standing to challe nge the inventory, we vacate the preliminary injunction and remand with instruct ions to dismiss the seven causes of action directly related to the inventory and to further consider Plaintiffs’ sixth cause of action, the only cause of action notdirectly related to the inventory.
I. BACKGROUND A. Summary of Utah Wilderness Debate A brief review of the history of the wilderness deb ate in Utah is necessary to put the facts of this case into context. In 197 6, Congress enacted the Federal Land Policy and Management Act (“FLPMA”) to, among other things, “[e]stablish a mission for the public lands adminis tered by the Secretary of the Interior through the Bureau of Land Management” (“B LM”). H.R. Rep. No. 94- 1163, at 431 (1976), reprinted in 1976 U.S.C.C.A.N. 6175, 6176. These public lands comprise approximately one-fifth of the natio n’s land and are primarily located in eleven western states and Alaska. See id.1 The definition of “wilderness” is taken from the Wi lderness Act of 1964,

which defines “wilderness” as an area where the earth and its community of life a re untrammeled by man, where man himself is a visitor who does not re main. An area of wilderness is further defined to mean ... an area o f undeveloped Federal land retaining its primeval character and i nfluence, without permanent improvements or human habitation, which i s protected and managed so as to preserve its natural conditions an d which (1) generally appears to have been affected primarily b y the forces of nature, with the imprint of man’s work substantiall y unnoticeable; (2) has outstanding opportunities for solitude or a pri mitive and unconfined type of recreation; (3) has at least fiv e thousand acres of land or is of sufficient size as to make practicabl e its preservation and use in an unimpaired condition; and (4) may als o contain ecological, geological, or other features of scient ific, educational, scenic, or historical value. 16 U.S.C. § 1131(c). -4- FLPMA § 201 requires the Secretary of the Department of Interior (“Secretary”) to “prepare and maintain on a continu ing basis an inventory of all public lands and their resource and other values.” 43 U.S.C. § 1711(a). FLPMA § 603 ordered the Secretary to review within fiftee n years certain “roadless areas of five thousand acres or more” and report to the P resident recommendations concerning the “suitability or nonsuitability” of e ach area for preservation as wilderness. 1 43 U.S.C. § 1782(a). Within two years after rece iving the Secretary’s recommendations, the President was to a dvise Congress of his recommendations. See id. § 1782(b). An Act of Congress is necessary to designate public lands as wilderness. See id.-5-

Soon after FLPMA was enacted, BLM began its nationw ide wilderness review program in accordance with the Wilderness In ventory Handbook (“WIH”), which was adopted to standardize the FLPMA § 603 pr ocess. See BLM, U.S. Dep’t of the Interior, Wilderness Inventory Handbook 3 (1978) [hereinafter WIH]. The review proceeded in three stages: (1) the “inv entory” phase, consisting of (a) an “initial inventory” to identify “wilderness inve ntory units,” which were defined as roadless areas of 5000 acres or more that may have wilderness characteristics, and (b) an “intensive inventory” of these units to determine whether the units possessed wilderness characteristics and, if so, de signation of the units as “wilderness study areas” (“WSAs”); (2) the “study” phase, during which WSAs were studied to determine whether the lands were su itable for designation as wilderness; and (3) the “reporting” phase, consisti ng of the Secretary’s recommendations to the President and the President’ s recommendations to Congress. WIH, supra , at 3, 9-11; see also Rocky Mountain Oil & Gas Ass’n v.
Watt , 696 F.2d 734, 740 (10th Cir. 1982) (discussing § 603 wilderness review process). FLPMA § 603 directed the Secretary to “m anage [the lands subject to the wilderness review process] ... so as not to imp air the suitability of such areas for preservation as wilderness.” 43 U.S.C. § 1782( c). To implement this2 The lands subject to the FLPMA § 603 review process are managed under

the IMP until Congress designates the lands as wild erness or the lands are released from further wilderness consideration. See Rocky Mountain Oil & Gas Ass’n v. Watt , 696 F.2d 734, 740 (10th Cir. 1982) (discussing § 603 wilderness review process).

3 See, e.g. , Decision on Protests, 46 Fed. Reg. 15,332 (1981); Utah Wilderness Ass’n , 72 I.B.L.A. 125 (1983) (appealing BLM decision in volving approximately 925,000 acres of public lands); Decis ion on Reassessment of Units Set Aside and Remanded by I.B.L.A., 48 Fed. Reg. 46 ,858 (1983); Utah Wilderness Ass’n , 86 I.B.L.A. 89 (1985) (appealing BLM’s reassessme nt with respect to approximately 250,000 acres). -6- directive, BLM adopted the Interim Management Polic y and Guidelines for Lands Under Wilderness Review (“IMP”). 2 See Rocky Mountain Oil , 696 F.2d at 739. BLM initially reviewed approximately 22 million acr es of federal public lands in Utah and identified approximately 14.5 mil lion acres that “clearly and obviously” did not contain wilderness characteristi cs. See 44 Fed. Reg. 46,541 (1979). BLM subsequently conducted an intensive in ventory of approximately 5.2 million acres to determine the presence or absence of wilderness characteristics.
See 45 Fed. Reg. 20,576 (1980); 45 Fed. Reg. 27,831 (1 980). In 1980, BLM completed the inventory phase of the § 603 wilderne ss review process for public lands in Utah and, after a public comment period, p ublished its final inventory decision designating approximately 2.5 million acre s as WSAs. See 45 Fed. Reg. 75,602 (1980). In 1991, after lengthy administrati ve appeals, 3 then-Secretary Manuel Lujan, Jr. recommended to President George B ush that approximately 1.9 million acres be designated as wilderness. See BLM, U.S. Dep’t of the Interior,4 In 1995, Utah Representatives James Hansen and EnidGreene sponsored

H.R. 1745, which would have designated approximatel y 2.1 million acres of federal lands in Utah as wilderness. Utah Senators Orrin Hatch and Robert Bennett introduced a similar bill, S. 884, in the S enate. Various environmental groups supported H.R. 1500, which would have design ated approximately 5.7 million acres as wilderness. H.R. 1500, which has been introduced every year since 1989, was sponsored in 1995 by New York Repre sentative Maurice Hinchey. None of the 1995 bills passed. In 1997, Utah Representative Chris Cannon sponsored H.R. 1952, which would designate approximately 2.1 million acres as wilderness. H.R. 1500 was again introduce d by Representative Hinchey, along with its Senate counterpart, S. 773, sponsore d by Illinois Senator Richard Durbin. To date, none of the 1997 bills have passe d. -7- Utah Statewide Wilderness Study Report3 (1991). Shortly thereafter, President Bush forwarded the 1.9 million acre recommendation to Congress. Although various groups, including the Utah congressional de legation, have supported legislation to designate federal lands in Utah as w ilderness, 4 Congress has not yet passed any such legislation. B. 1996 Inventory On July 24, 1996, Secretary Babbitt sent a letter t o Utah Congressman James Hansen acknowledging the “stalemate” on the U tah wilderness issue and informing him that “a small team of career professi onals, who have substantial expertise in addressing wilderness issues in Utah and elsewhere,” were going to “take a careful look at the lands identified in the 5.7 million acre bill [H.R. 1500] that have not been identified by the BLM as wildern ess study areas, and report5 According to Robert V. Abbey, project leader for th e 1996 inventory, the

inventory was to include fieldwork, review of resou rce data from recent aerial photography, and review of information generated inprior federal and state reviews and public hearings on the public lands in Utah.

6 See Letter from James V. Hansen, Orrin G. Hatch, & Rob ert F. Bennett to Bruce Babbitt, Secretary of the Interior (Aug. 1, 1 996). -8- their findings.” 5 Letter from Bruce Babbitt, Secretary of the Inter ior, to James V. Hansen, Chairman, Subcommittee on National Parks, F orests, and Public Lands 2 (July 24, 1996). Babbitt noted the team was “expli citly instructed to apply the same legal criteria that were used in the original inventory” and estimated the work would be completed within six months. Id. Although Representative Hansen, along with Utah Sen ators Orrin Hatch and Robert Bennett, strongly opposed Babbitt’s planto “re-inventory” federal lands in Utah, 6 the BLM team began its inventory fieldwork in Sept ember 1996. The team proceeded with the inventory in accordance with the Utah Wilderness Review Procedures (“1996 Procedures”), which were a dopted by BLM specifically for purposes of the 1996 inventory andwhich incorporated various provisions of the WIH. According to the Defendants in this action, the sol e purpose of the 1996 inventory is to identify the presence or absence of wilderness characteristics on the public lands. They assert the report based on the inventory will not contain any recommendations concerning the suitability or u nsuitability of the lands for-9-

management as wilderness and neither the inventory nor the report will affect the management of the public lands. Babbitt has consis tently maintained that once he reviews the results of the inventory, he will make the report public and determine what further action, if any, will be taken. C. Proceedings Below In October 1996, the State of Utah, the Utah School and Institutional Trust Lands Administration, and the Utah Association of C ounties (collectively, “Plaintiffs”) filed suit in federal district court challenging the 1996 inventory on various grounds and seeking to enjoin the Secretaryand BLM from proceeding with the inventory. Plaintiffs named as Defendants the Department of Interior; Babbitt, in his official capacity as Secretary; BLM ; and Michael Dombeck, in his official capacity as acting director of BLM (collec tively, “Defendants”). Plaintiffs alleged the following eight causes of ac tion: (1) unauthorized inclusion of state trust lands in the lands being i nventoried; (2) arbitrary and unequal treatment of Utah, in violation of the U.S. Constitution; (3) conducting the inventory without authority; (4) failure to pro vide for public involvement in the inventory, in violation of FLPMA; (5) failure t o follow rule-making procedures when promulgating the 1996 Procedures, i n violation of FLPMA; (6) de facto wilderness management of non-WSA federal l ands, in violation of FLPMA; (7) arbitrary change in interpretation of FL PMA and the WIH; and (8)-10-

failure to prepare an environmental impact statemen t (“EIS”), in violation of the National Environmental Policy Act (“NEPA”). Plaint iffs further alleged generally that Defendants’ actions exceeded their statutory a uthority and were arbitrary and capricious, and should therefore be declared unlawf ul and set aside under the Administrative Procedure Act (“APA”). In their Complaint, Plaintiffs requested the follow ing relief: (1) a declaration that Defendants have no authority to co nduct the inventory or adopt the 1996 Procedures; (2) a declaration that Defenda nts’ inclusion of state trust lands in the inventory violates the Utah Enabling A ct of 1894, FLPMA, and the U.S. Constitution; (3) a declaration that Defendant s’ adoption of the 1996 Procedures and their implementation of the inventory violates FLPMA; (4) a declaration that Defendants’ imposition of differen t review criteria and procedures for public lands in Utah violates the Ut ah Enabling Act of 1894, FLPMA, and the U.S. Constitution; (5) a declarationthat the inventory is a “major federal action that may significantly affectthe environment,” necessitating preparation of an EIS; (6) an injunction prohibitin g Defendants from taking any action in connection with the inventory until they have complied with FLPMA and NEPA; (7) an injunction prohibiting Defendants from imposing a de facto wilderness management standard on non-WSA federal l ands until such time as they comply with FLPMA; (8) an injunction prohibiti ng Defendants from making7A party seeking a preliminary injunction must show the following: (1) that

it will suffer an irreparable injury absent an inju nction; (2) that the threatened injury outweighs the harm an injunction may cause t he opposing party; (3) that an injunction would not be adverse to the public inter est; and (4) that it is substantially likely to prevail on the merits. See Elam Constr., Inc. v. Regional Transp. Dist. , 129 F.3d 1343, 1346-47 (10th Cir. 1997). -11- any use of information gathered during the inventory process; and (9) an award of attorney fees and costs to the extent permitted by law. Approximately three weeks after Plaintiffs filed th eir Complaint, they filed a motion seeking a temporary restraining order and preliminary injunction, asking the district court to enjoin Defendants from comple ting the inventory and from using information gathered during the inventory pro cess. 7Plaintiffs relied on three arguments to support their motion: (1) Defen dants violated FLPMA by failing to allow public involvement in the inventory process; (2) Defendants violated the APA and FLPMA by failing to allow publ ic comment before adopting the 1996 Procedures; and (3) Defendants had no authority to include state trust lands in the inventory. Defendants responded to Plaintiffs’ motion by argui ng (1) Plaintiffs would not suffer any irreparable injury if their motion w as denied; (2) the case was not ripe for review, as there was no “final agency acti on” for purposes of proceeding under the APA; and (3) Plaintiffs could not show a likelihood of success on the merits because the inventory did not require public participation, adoption of the-12-

1996 Procedures did not require informal rule-makin g, and the Procedures were not arbitrary or capricious. After a hearing, the district court granted Plainti ffs’ motion and enjoined Defendants from proceeding with the inventory. The court first concluded Plaintiffs were likely to prevail on their legal cl aims. The court determined that neither FLPMA § 201 nor FLPMA § 603 authorized the inventory. The court then noted that even if § 201 did authorize the inventory, Defendants violated the section by failing to allow public participation. Next, the court concluded that Plaintiffs would be irreparably harmed absent a pre liminary injunction. The court stated that “[i]f the Plaintiffs are denied involve ment from the earliest stages of the reinventory procedure, they may well be placed at a serious disadvantage in challenging the factual basis for the reinventory r esults once the process is complete.” The court acknowledged, however, that “ it is not presently known what the results of the reinventory will be or for that matter whether the Plaintiffs will disagree with those results.” Nevertheless, the court found that the “offer of public comment after the process is complete cannot[remedy] the advantage Defendants would gain by developing inventory crite ria and conducting the inventory without public scrutiny.” Finally, the c ourt concluded that the balance8 The court did not address Defendants’ claim that th e case was not ripe for

review.

9 We note that approximately 45 days after oral argum ent in the appeal of this case, Plaintiffs filed a Motion to Remand to t he District Court for the Jurisdictional Issues of Standing, Ripeness, and Fi nal Agency Action. In arguing that this court should remand to the district court , Plaintiffs noted they were granted leave to amend and supplement the Complaintto add an ultra vires claim, which affected the standing analysis. Plaintiffs a lso argued they had uncovered documents during formal discovery which provided ad ditional support for their -13- of interests favored the issuance of an injunction. 8 The district court therefore enjoined Defendants “from further work on the Utah Wilderness Review until this case is finally adjudicated on its merits.” Defendants appeal the district court’s order enjoin ing them from completing the 1996 inventory and argue that Plaint iffs’ claims should be dismissed for lack of standing and ripeness. In th e alternative, Defendants argue the district court abused its discretion in grantin g the preliminary injunction because Plaintiffs cannot show a likelihood of succ ess on the merits. In support of this alternative position, Defendants assert that BLM is authorized to conduct the inventory, that no public participation is requ ired during the inventory process, and that the balance of hardships compels denial of injunctive relief.
II. DISCUSSION A. Standing Requirements Defendants challenge the district court’s jurisdict ion by attacking Plaintiffs’ standing to bring their claims. 9 The requirement of standing “‘involvesallegations of injury-in-fact. Plaintiffs addition ally noted they had recently

responded to Defendants’ motion to dismiss in the d istrict court, which was their first opportunity to fully address the standing iss ue. Defendants opposed the motion, arguing the standing issue had been fully b riefed and argued in this appeal. This court denied Plaintiffs’ motion. Pla intiffs’ amended Complaint is not before us. We therefore consider only the alle gations in Plaintiffs’ original Complaint. -14- both constitutional limitations on federal-court ju risdiction and prudential limitations on its exercise.’” Bennett v. Spear , 117 S. Ct. 1154, 1161 (1997) (quoting Warth v. Seldin , 422 U.S. 490, 498 (1975)). The notion of standin g is grounded in Article III of the U.S. Constitution, w hich restricts federal court adjudication to actual cases or controversies. See Allen v. Wright , 468 U.S. 737, 750 (1984). The doctrinal foundation of Article II I standing is the principle of separation of powers. See id. at 750-52. Standing is but one of several gatekeepers “‘founde d in concern about the proper--and properly limited--role of the courts ina democratic society.’” Id. at 750 (quoting Warth v. Seldin , 422 U.S. 490, 498 (1975)). “All of the doctrines that cluster about Article II I--not only standing but mootness, ripeness, political question, and the like--relate in part, and in different though overlapping ways, to an ide a, which is more than an intuition but less than a rigorous and expl icit theory, about the constitutional and prudential limits to the pow ers of an unelected, unrepresentative judiciary in our kind of government.” Id. (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178-79 (1983) (Bork, J., concurring)).-15-

Because Plaintiffs have invoked Article III jurisdi ction to challenge the conduct of the executive branch of government, the necessity of a case or controversy is of particular import. See Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 804 (11th Cir. 1993). The warnings against unrestrained exercise of the power of judicial revi ew over the conduct of the executive or congressional branches by relaxation o f the standing requirements are numerous and dire. See, e.g. , Valley Forge Christian College v. Americans United for Separation of Church & State, Inc. , 454 U.S. 464, 473-74 (1982); United States v. Richardson , 418 U.S. 166, 188-93 (1974) (Powell, J., concurring). Restraint in the exercise of judicial review preserves not only the power and vitality of the judiciary, but that of ea ch of the other two coordinate branches of federal government as well. See Valley Forge , 454 U.S. at 474; Richardson , 418 U.S. at 188-89. Standing to invoke the powerof the federal courts is not a mere technical hoop through which e very plaintiff must pass, but rather is “a part of the basic charter promulgated by the Framers of the Constitution.” Valley Forge , 454 U.S. at 476. These principles of constitutional governance mandate strict compliance with the standing requirement. See Raines v. Byrd, 117 S. Ct. 2312, 2317 (1997). Standing is not measured by the intensity of a party’s commitment, fervor, or aggression in pursuit of its alleged right and reme dy. See Doremus v. Board of-16-

Educ. , 342 U.S. 429, 434-35 (1952); Schlesinger v. Reservists Comm. to Stop the
War , 418 U.S. 208, 225-26 (1974); Valley Forge , 454 U.S. at 485-86; Diamond v. Charles , 476 U.S. 54, 62 (1986). Nor is the perceived imp ortance of the asserted right a substitute for constitutional standing. See Valley Forge , 454 U.S. at 484- 85. The argument that no other person is better su ited to bring the lawsuit is equally unavailing. See id. at 489 (“‘[T]he assumption that if [plaintiffs] have no standing to sue, no one would have standing, is nota reason to find standing.’” (quoting Schlesinger , 418 U.S. at 227)). Notwithstanding its prominent gatekeeping role, the standing requirement of Artic le III should never be interpreted to bar a party properly before the court from invoking the power of judicial review. To satisfy the standing requirement of Article III, Plaintiffs must demonstrate the following: (1) that the plaintiff[s] have suffered an “injury in fact”--an invasion of a judicially cognizable interest which is (a) co ncrete and particularized and (b) actual or imminent, not conj ectural or hypothetical; (2) that there [is] a causal connecti on between the injury and the conduct complained of--the injury mu st be fairly traceable to the challenged action of the defendant , and not the result of the independent action of some third party not b efore the court; and (3) that it [is] likely, as opposed to merely s peculative, that the injury will be redressed by a favorable decision.
Bennett , 117 S. Ct. at 1163 (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992)); see also Phelps v. Hamilton , 122 F.3d 1309, 1316 (10th Cir.10 Section 10(a) of the APA provides: “A person suffe ring legal wrong

because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitl ed to judicial review thereof.” 5 U.S.C. § 702. The APA further provides: Agency action made reviewable by statute and final agency action for -17- 1997). “The party invoking federal jurisdiction be ars the burden of establishing these elements.” Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992). The burden is therefore on Plaintiffs “‘clearly to alle ge facts demonstrating that [they are] a proper party to invoke judicial resolution o f the dispute.’” United States v. Hays , 515 U.S. 737, 743 (1995) (quoting Warth v. Seldin , 422 U.S. 490, 518 (1975)). “In addition to the immutable requirements of Artic le III, ‘the federal judiciary has also adhered to a set of prudential p rinciples that bear on the question of standing.’” Bennett , 117 S. Ct. at 1161 (quoting Valley Forge , 454 U.S. at 474-75). These prudential principles inclu de “the general prohibition on a litigant’s raising another person’s legal rights [and] the rule barring adjudication of generalized grievances more appropriately addres sed in the representative branches.” Allen , 468 U.S. at 751. “[U]nlike their constitutional counterparts, [these prudential requirements] can be modified or abrogated by Congress.”
Bennett , 117 S. Ct. at 1161. Because neither FLPMA nor NEPA provide for a privat e right of action, Plaintiffs rely on the judicial review provisions o f the APA 10 in bringing theirwhich there is no other adequate remedy in a court are subject to

judicial review. A preliminary, procedural, or int ermediate agency action or ruling not directly reviewable is subjectto review on the review of the final agency action. Id. § 704.

11 “Neither the Administrative Procedure Act, nor any other congressional enactment, can lower the threshold requirements of standing under Art. III.” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc. , 454 U.S. 464, 487 n.24 (1982).

12 In opposing Plaintiffs’ motion for a preliminary in junction in the district court, Defendants did not argue that Plaintiffs lac ked standing because they failed to show an injury-in-fact from the 1996 inventory. Defendants did, however, argue that Plaintiffs failed to show some “final ag ency action” for purposes of proceeding under the APA. Closely related to the i njury-in-fact argument, Defendants also argued that Plaintiffs had not show n they would suffer an “irreparable” injury in the absence of an injunctio n. -18- claims. Cf. Lujan v. National Wildlife Fed’n , 497 U.S. 871, 882 (1990) (noting that plaintiffs did not contend that FLPMA and NEPAprovide a private right of action and that plaintiffs were proceeding under th e APA). Consequently, in addition to the Article III standing requirements, 11 Plaintiffs must also meet the statutory standing requirements of the APA: Plaint iffs must show there has been some “final agency action” and must “demonstrate th at [their] claims fall within the zone of interests protected by the statute form ing the basis of [their] claims.” Catron County Bd. of Comm’rs v. United States Fish & Wildlife Serv. , 75 F.3d 1429, 1434 (10th Cir. 1996). Defendants argue that Plaintiffs lack Article III s tanding because they cannot show an injury-in-fact flowing from the 1996 inventory. 12 Defendants alsoStanding is “jurisdictional in nature,” and “we are obligated to satisfy

ourselves as to our own jurisdiction at every stage of the proceeding.” Alexander v. Anheuser-Busch Cos. , 990 F.2d 536, 538 (10th Cir. 1993). Therefore, Defendants’ failure to argue before the district co urt that Plaintiffs lacked standing because they could show no injury-in-fact does not bar our considering the argument at this time. See, e.g. , Joslin v. Secretary of Dep’t of Treasury , 832 F.2d 132, 134 (10th Cir. 1987); Citizens Concerned for Separation of Church & State v. City & County of Denver , 628 F.2d 1289, 1301 (10th Cir. 1980). -19- argue that Plaintiffs lack standing under the APA b ecause the inventory does not constitute a “final agency action” and because Plai ntiffs cannot show they are “aggrieved” within the meaning of the APA. See 5 U.S.C. §§ 704, 702. This court reviews questions of standing de novo. See Catron County , 75 F.3d at 1433. Because “[c]ase-or-controversy consideration s ... ‘obviously shade into those determining whether the complaint states a so und basis for equitable relief[,]’ [t]he latter set of considerations ... i nform our judgment about whether [Plaintiffs] have standing.” Allen , 468 U.S. at 760-61 (quoting O’Shea v. Littleton , 414 U.S. 488, 499 (1974)). “‘[S]tanding jurisprudence is a highly case-specif ic endeavor, turning on the precise allegations of the parties seeking reli ef.’” Wyoming ex rel. Sullivan v. Lujan , 969 F.2d 877, 882 (10th Cir. 1992) (quoting National Wildlife Fed’n v. Hodel , 839 F.2d 694, 703-04 (D.C. Cir. 1988)). After ca refully reviewing the allegations in Plaintiffs’ Complaint, this court co ncludes that seven of the eight13 In their briefs on appeal, both parties have focuse d on the 1996 inventory

and have generally treated all the causes of action as flowing from the inventory. A close reading of Plaintiffs’ Complaint, however, reveals that Plaintiffs’ sixth cause of action, their claim that Defendants are cu rrently imposing a de facto wilderness management standard on non-WSA federal l ands in violation of FLPMA, does not stem from Defendants’ decision to c onduct the inventory. The remaining seven causes of action, however, all relate directly to the 1996 inventory. The first cause of action challenges the inclusion of state trust lands in the lands being inventoried. In the second cause of ac tion, Plaintiffs claim that Defendants have unlawfully singled out the State of Utah for “unique and special study.” In the third cause of action, Plaintiffs c laim that Defendants do not have authority to conduct the inventory, and in the fourth cause of action, Plaintiffs assert that Defendants have violated FLPMA by faili ng to allow public participation in the inventory process. The fifth cause of action challenges the promulgation of the 1996 Procedures. In the seventh cause of action, Plaintiffs claim that because Defendants arbitrarily changed t heir interpretation of FLPMA and the WIH, both Defendants’ decision to conduct the inventory and the 1996 Procedures are arbitrary and capricious and should thus be set aside. Finally, in the eighth cause of action, Plaintiffs assert the i nventory constitutes a major federal action that may significantly affect the en vironment, necessitating preparation of an EIS. -20- causes of action relate directly to the 1996 invent ory. 13 The only cause of action not directly related to Defendants’ decision to con duct the inventory is Plaintiffs’ sixth cause of action, claiming that Defendants are currently imposing a de facto wilderness management standard on non-WSA federal l ands, in violation of
FLPMA. Although Plaintiffs have alleged eight causes of ac tion, they have not alleged a distinct identifiable injury for each cau se of action. A thorough review of the allegations in Plaintiffs’ Complaint and the arguments in their appellate-21-

brief reveals that Plaintiffs essentially allege fi ve types of injury with respect to all their causes of action: (1) Plaintiffs have ge nerally been injured by Defendants’ acting in contravention of the law; (2) Plaintiffs have been injured by denial of their right to participate in the invento ry process; (3) Plaintiffs have been injured by Defendants’ imposition of a de fact o wilderness management standard on non-WSA federal lands, formalization of which is imminent due to the 1996 inventory; (4) Plaintiffs have been injure d by denial of their opportunity to comment on whether the lands included in the inv entory are “roadless” and by Defendants’ changes to their road maintenance polic ies; and (5) Plaintiffs have been injured by Defendants’ failure to prepare an E IS. Analysis of each alleged injury is necessary to determine whether Plaintiffs have met their burden of establishing the “irreducible constitutional minimu m” of standing: that they suffered an “injury-in-fact,” i.e., an invasion of a “judicially cognizable interest,” which is “fairly traceable” to Defendants’ conduct and which will “likely be redressed by a favorable decision.” Bennett , 117 S. Ct. at 1161.

B. Standing to Challenge 1996 Inventory Preliminarily, we note that “[the elements of const itutional standing] are not mere pleading requirements but rather [are] an indispensable part of the plaintiff’s case.” Defenders of Wildlife , 504 U.S. at 561. Consequently, “each element must be supported in the same way as any ot her matter on which the-22-

plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation .” Id. At the motion to dismiss stage, this court “must ac cept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin , 422 U.S. 490, 501 (1975). Further, “we ‘presum[e] that general allegations embrace those s pecific facts that are necessary to support the claim.’” Defenders of Wildlife , 504 U.S. at 561 (alteration in original) (quoting National Wildlife Fed’n , 497 U.S. at 889). Therefore, at the pleading stage, “general factual allegations of inj ury resulting from the defendant’s conduct may suffice.” Id. “In response to a summary judgment motion, however, the plaintiff can no longer rest o n such ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘sp ecific facts,’ which for purposes of the summary judgment motion will be taken to be true.” Id. (quoting Fed. R. Civ. P. 56(e)). “[A]t the final stage, those facts (if controverted) must be ‘supported adequately by the evidence adduced at tr ial.’” Id. (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115 n.31 (1979)). In their brief, Plaintiffs argue that although Defe ndants did not file a motion to dismiss prior to appeal, this court shoul d apply a motion to dismiss standard in determining whether they have standing to challenge the 1996 inventory because “when standing to sue is raised this early in the litigation, such14 Plaintiffs cite no authority for this statement. -23- as in the context of a preliminary injunction, the [motion to dismiss standard] applies.” 14 Defendants, however, suggest a more stringent standard should apply in cases such as this, when a plaintiff is the bene ficiary of a preliminary injunction. Cf. Church v. City of Huntsville , 30 F.3d 1332, 1336 & 1336 n.1 (11th Cir. 1994) (applying motion to dismiss standard to determine standing on appeal from a preliminary injunction because defend ants did not challenge standing before the district court, but “leav[ing] for another day a determination of the degree of evidence necessary to support stan ding at the preliminary injunction stage when the plaintiff is on notice th at standing is contested”). We need not decide whether a heightened standard is generally appropriate to establish standing at the preliminary injunction stage, however, because we conclude that even under the more lenient motion to dismiss standard, Plaintiffs have not met their burden of demonstrating standing to challenge the 1996 inventory. We accordingly evaluate Plaintiffs’ all eged injuries through the lens of the more lenient motion to dismiss standard. 1. Acting in Contravention of the Law In their Complaint, Plaintiffs generally assert the y have been injured because Defendants are acting without authority and otherwise in contravention of15 In particular, Plaintiffs claim they are injured be cause (1) Defendants lack

authority to include state trust lands in the 1996 inventory; (2) Defendants have improperly singled out the State of Utah for “uniqu e and special study”; (3) Defendants lack authority to conduct the 1996 inven tory; and (4) Defendants arbitrarily changed their interpretation of FLPMA a nd the WIH.

16 In arguing they are likely to prevail on the merits , which is a requirement for obtaining a preliminary injunction, Plaintiffs do maintain their contention that Defendants lack authority to conduct the 1996 inven tory and to include state trust lands in the inventory. -24- established procedures. 15 On appeal, Plaintiffs appear to abandon these arguments altogether in the standing context 16 and for good reason: the mere allegation that Defendants are acting without autho rity or in violation of the law is insufficient to establish standing. The Supreme Court “has repeatedly held that an asse rted right to have the Government act in accordance with [the] law is not sufficient, standing alone, to confer jurisdiction on a federal court.” Allen , 468 U.S. at 754 (holding plaintiffs lacked constitutional standing to challenge governm ent action that allegedly violated the law); cf. Diamond, 476 U.S. at 62 (“The presence of a disagreement, however sharp and acrimonious it may be, is insuffi cient by itself to meet Art. III’s requirements.”). To prevail on the merits, P laintiffs must prove that Defendants have acted in contravention of the law. To reach the merits, however, Plaintiffs must first identify a concrete injury fl owing from Defendants’ allegedly unlawful actions. See Valley Forge , 454 U.S. at 485 (“Although respondents claim that the Constitution has been violated, they claim nothing else. They fail17 On appeal, Defendants primarily rely on FLPMA § 201 as providing the

necessary authority to conduct the 1996 inventory, but also assert they have authority under FLPMA § 603. Just prior to this li tigation, however, Defendants explicitly rejected § 603 as providing the necessary authority to conduct the inventory. See, e.g. , Letter from Bruce Babbitt, Secretary of the Inter ior, to James V. Hansen, Chairman, Subcommittee on National Parks , Forests, and Public Lands 2 (July 24, 1996) (“I also agree with you that FLPMA’s section 603 no longer provides authority to inventory BLM land in Utah for wilderness values.”); BLM, U.S. Dep’t of the Interior, Utah Wilderness Review Procedures (1996) [hereinafter 1996 Procedures] (stating “wilderness review mandate” of § 603 “has been completed” and identifying, inter alia, § 201 as authority for conducting the 1996 inventory). Similarly, in other wilderness in ventory contexts, such as inventories of newly acquired public lands, BLM has consistently relied on FLPMA §§ 201 and 202, not § 603, as providing the n ecessary authority to conduct the inventories. See, e.g. , Wilderness Society , 119 I.B.L.A. 168, 170-72 (1991) (noting “second inventory” of lands previous ly inventoried under § 603 and inventory of adjacent newly acquired parcels wa s completed under § 201, not § 603); Amendment of Notice of Intent, 56 Fed. Reg. 40,341 (1991) (announcing intent to prepare land use plan and to inventory ne wly acquired public lands for wilderness values, and citing § 202 as authority). In proceedings before the district court, Defendant s relied solely on § 201 as providing authority to conduct the inventory. I n their Memorandum in Opposition to Motion for a Temporary Restraining Or der and Preliminary Injunction, Defendants noted that “[w]hile letters from the Secretary and the State Director have cited various provisions of FLPMA forthe authority to undertake the re-inventory, section 201(a) provides the autho rity necessary.” During the hearing on Plaintiffs’ motion for a preliminary inj unction, the district court -25- to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one d isagrees. That is not an injury sufficient to confer standing under Art. III ....”). We therefore consider Plaintiffs’ additional claims of injury to determin e whether Plaintiffs have shown a concrete injury flowing from Defendants’ allegedl y unlawful conduct. 17questioned Defendants’ authority to conduct the inv entory. After the hearing,

Defendants requested leave to submit supplemental m emoranda on the Secretary’s authority under § 201 to conduct the inventory. In their letter accompanying the request, Defendants stated that “[t]he Secretary of Interior has authority under FLPMA independent of § 603 to consider lands for wi lderness review.” The district court did not respond to Defendants’ reque st. The 1996 inventory focuses on specific lands previo usly inventoried under § 603 and is limited to determining whether these l ands are roadless and possess wilderness characteristics. See 1996 Procedures , supra . The inventory will not address the suitability of the lands for managementas wilderness. See id. In determining whether public lands are suitable for d esignation as wilderness, BLM considers “all values, resources, and uses of the l ands,” not just whether the lands are roadless and possess wilderness characteristics

. See, e.g. , WIH, supra , at 3. Section 603 envisions a much more comprehensive pro cess (including interim wilderness management of WSAs, suitability analysis , and wilderness recommendations to the President and Congress) thanthat implemented by the 1996 inventory. We agree with Plaintiffs that the Secretary’s expr ess rejection of § 603 in actions prior to this appeal renders Defendants’ re liance on § 603 before this court questionable. In addition, Defendants’ sole reliance on § 201 before the district court suggests that § 603 was merely an af terthought on appeal. We therefore reject Defendants’ claim that they were c onducting the inventory under the authority of § 603 and analyze the remainder of Plaintiffs’ alleged injuries as though Defendants were proceeding under § 201. Cf. Olenhouse v. Commodity Credit Corp. , 42 F.3d 1560, 1575, 1577 (10th Cir. 1994) (discus sing whether agency action was “arbitrary and capricious” and re jecting “[a]fter-the-fact rationalization by counsel in briefs or argument”).

18 Plaintiffs proceeded before the district court on a lternative theories. They first alleged that Defendants lacked statutory auth ority to conduct the 1996 inventory. As noted in the preceding section, Plai ntiffs have appropriately abandoned the contention that they are automaticall y entitled to standing merely because they allege Defendants are without authority to conduct the inventory. In the alternative, Plaintiffs alleged inter alia that even if the inventory was proper -26- 2. Denial of Public Participation Plaintiffs also claim they are injured by Defendant s’ refusal to allow public participation in the inventory process, in violatio n of FLPMA § 201. 18under FLPMA § 201, the public had a right under FLP MA to participate in the

inventory. This alternative argument assumes that Defendants have authority under § 201 to conduct the inventory. For purposes of analyzing Plaintiffs’ alleged injuries, we also assume, though we do not decide, that Defendants do have authority under § 201 to conduct the 1996 inve ntory.

19 We note that BLM representatives attended several m eetings with various state and local officials concerning the 1996 inven tory and, although it did not solicit information, BLM did “welcome any informati on” pertinent to the inventory. Letter from G. William Lamb, State Dire ctor, BLM, to Mark O. Walsh, Utah Association of Counties 2 (Sept. 18, 19 96).

20 Whether FLPMA grants public participation rights to Plaintiffs in the inventory process is a legal question. This court need not accept Plaintiffs’ allegation that they are entitled to public partici pation. See Hackford v. Babbitt , 14 F.3d 1457, 1465 (10th Cir. 1994) (noting that indetermining standing, court is “not bound by conclusory allegations, unwarranted i nferences, or legal conclusions”); Western Mining Council v. Watt , 643 F.2d 618, 624 (9th Cir. 1981) (noting that in determining standing, court does no t “necessarily assume the truth of legal conclusions merely because they are cast i n the form of factual allegations”); cf. Murphy v. United States , 45 F.3d 520, 522 (1st Cir. 1995) (noting that when reviewing dismissal for lack of s ubject matter jurisdiction, plaintiff “may not rest merely on ‘unsupported conc lusions or interpretations of law’” (quoting Washington Legal Found. v. Massachusetts Bar Found. , 993 F.2d 962, 971 (1st Cir. 1993)). We recognize that in cases when the standing inquiry overlaps with the -27- Defendants counter that § 201 does not require publ ic participation in the inventory itself. 19 Further, Defendants argue that any injury suffere d by Plaintiffs from the denial of such participation is conjectura l and hypothetical since it is not yet known how Defendants will utilize the report ba sed on the inventory and, moreover, whether Plaintiffs will even disagree with the results of the inventory. We first look to the relevant provisions of FLPMA t o determine whether Plaintiffs have a right to participate in the inven tory process. 20 If we concludemerits of the plaintiff’s claim, courts have been i nconsistent in their willingness

to resolve legal questions in determining standing. See Taylor v. FDIC , No. 96- 5267, 1997 WL 791655, at *11 (D.C. Cir. Dec. 23, 19 97) (discussing differing treatment). In this case, however, we conclude it is appropriate to resolve the legal question of whether FLPMA provides for public participation to the extent necessary to determine whether Plaintiffs have suff ered an injury-in-fact for standing purposes. Cf. id. at *10-*11 (disposing of reinstatement claim on standing grounds after rejecting plaintiffs’ assert ion that voluntary departure constituted a constructive discharge); Claybrook v. Slater , 111 F.3d 904, 906-09 (D.C. Cir. 1997) (holding plaintiff lacked standing after concluding the statute upon which plaintiff relied in bringing her claim d id not impose legal duty plaintiff claimed it did); Arjay Assocs., Inc. v. Bush , 891 F.2d 894, 898 (Fed. Cir. 1989) (holding plaintiffs lacked standing because “ the injury they assert is to a nonexistent right to continued importation of a Con gressionally excluded product”); see also Marshall County Health Care Auth. v. Shala la , 988 F.2d 1221, 1226 (D.C. Cir. 1993) (“Appellants ... overlook the character of the questions before the district court when an agency action is challenged. The entire case on review is a question of law, and only a question of law. And because a court can fully resolve any purely legal question on a motion to dismiss, there is no inherent barrier to reaching the merits at the 12(b)(6) stag e.”). -28- that Plaintiffs do not have such a right, then Plai ntiffs’ claimed injury based on the denial of this right is without merit and they consequently lack standing to challenge the 1996 inventory on these grounds. See Claybrook v. Slater , 111 F.3d 904, 907 (D.C. Cir. 1997) (“[I]f the plaintiff’s cl aim has no foundation in law, he has no legally protected interest and thus no stand ing to sue.”); Arjay Assocs., Inc. v. Bush , 891 F.2d 894, 898 (Fed. Cir. 1989) (“We hold thatappellants lack standing because the injury they assert is to a non existent right ....”). If, however, we conclude that FLPMA does provide for public part icipation during the inventory process, we must then decide whether deni al of this right constitutes an-29-

injury for standing purposes and, further, whether the denial of public participation at this point constitutes a final age ncy action ripe for review. As authority to conduct the 1996 inventory, Defendants rely on FLPMA § 201, which provides:

The Secretary shall prepare and maintain on a conti nuing basis an inventory of all public lands and their resource and other values (including, but not limited to, outdoor recreation and scenic values), giving priority to areas of critical environmental concern. This inventory shall be kept current so as to reflect ch anges in conditions and to identify new and emerging resource and othervalues. The preparation and maintenance of such inventory or th e identification of such areas shall not, of itself, change or preve nt change of the management or use of public lands. ... [T]he Secretary shall ... provide State and loc al governments with data from the inventory for the purpose of pla nning and regulating the uses of non-Federal lands in proximi ty of such public lands. 43 U.S.C. § 1711. The district court concluded that even assuming Defendants have authority under § 201 to conduct the inventory , “it appears to be contrary to law that such an effort can be made without public involvement.” To determine whether FLPMA requires public particip ation during the inventory process, we look first to the language of the relevant statutory provisions. See Russello v. United States , 464 U.S. 16, 20 (1983). “If the statutory language is unambiguous, in the absence o f a clearly expressed legislative intent to the contrary, that language m ust ordinarily be regarded as conclusive.” Id. (internal quotations omitted).21 The relevant public participation provisions of FLP MA § 202 are as

follows: (a) Development, maintenance, and revision by Secretary— The Secretary shall, with public involvement ... de velop, maintain, and, when appropriate, revise land use pl ans ....

.... (c) Criteria for development and revision— In the development and revision of land use plans, the Sec retary shall--

.... (9) ... coordinate the land use inventory, planning , and management activities of or for such lands with the land use planning and management programs ... of the States and local governments within which the lands are located .... In impleme nting this directive, the Secretary ... shall provide for meaningful publ ic involvement of State and local government officials ... in the dev elopment of land use programs, land use regulations, and land use de cisions for public lands, including early public notice of proposed de cisions which may have a significant impact on non-Federal lands....

.... (f) Procedures applicable to formulation of plans and programs for public land management— The Secretary shall allow an opportunity for public involvement and by regulation shall establish procedures, including public hearings whe re appropriate, to give Federal, State, and local governments and the public, adequate notice and opportunity to comment upon and particip ate in the formulation of plans and programs relating to the m anagement of the public lands. -30- FLPMA § 201 is entitled “Continuing inventory and i dentification of public lands; preparation and maintenance.” 43 U.S.C. § 1 711. Section 201 is the first section in a subchapter entitled “Land Use Planning and Land Acquisition and Disposition.” FLPMA § 202, entitled “Land use plan s,” sets forth the process for the development, maintenance, and revision of land use plans by the Secretary. Id. § 1712. Section 202 is replete with requirements for public participation. 2143 U.S.C. § 1712(a), (c)(9), (f). The regulations to FLPMA § 202 set forth

specific requirements for public participation duri ng the preparation, amendment, and revision of land use plans. See, e.g. , 43 C.F.R. §§ 1610.2, 1610.4. -31- Unlike § 202, however, § 201 on its face contains n o such requirement. “‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate i nclusion or exclusion.’” Brown v. Gardner , 513 U.S. 115, 120 (1994) (quoting Russello , 464 U.S. at 23); cf. United States v. Granderson , 511 U.S. 39, 63 (1994) (Kennedy, J., concurring i n the judgment) (“The presumption [that Congress acts intentionally and purposely in the disparate inclusion or exclusion] loses some of its force when the sections in question are dissimilar and scattered at distantpoints of a lengthy and complex enactment.”). Plaintiffs argue § 201 must be read in conjunction with § 202 and that public participation must therefore be provided thr oughout the land use planning process, which they assert includes the inventory. Although § 201 and § 202 are certainly related in that the provisions of both se ctions are utilized in the overall land use planning process, the sections have differ ent purposes and different requirements. Section 201 provides for a continuin g inventory and identification of the public lands, whereas § 202 addresses the de velopment, maintenance, and revision of land use plans. The public participati on requirements of § 202 apply22 Defendants have not argued on appeal nor did they a rgue before the

district court that they were conducting the 1996 i nventory under the authority of FLPMA § 202. We note, however, that various docume nts in the record contain oblique references by Defendants to § 202 in the co ntext of their authority to conduct the inventory. Nevertheless, Defendants have never asserted that they are currently amending the land use plan for the lands included in the inventory. Defendants have acknowledged that amending the landuse plan for these lands is a “possible next step[],” but have noted this is on ly one possibility. Letter from Bruce Babbitt, Secretary of the Interior, to James V. Hansen, Chairman, Subcommittee on National Parks, Forests, and Public Lands 2-3 (July 24, 1996). Another possibility stated by Defendants is that th ey may formulate, through a legislative NEPA process, new wilderness recommendations to Congress. See id. Defendants have consistently acknowledged that if t hey do in fact amend the land use plan in the future, they will be required to co mply with the public participation requirements of § 202. -32- only when the Secretary is making decisions regardi ng land use plans, i.e., when the Secretary is making decisions directly affectin g the actual management of the public lands. Section 202's requirements do not ap ply when the Secretary is merely conducting an inventory of public lands unde r the authority of § 201, an inventory which, according to the plain language of § 201, shall not affect the management or use of the public lands. 22 We have found nothing to suggest that any time the Secretary conducts an inventory under § 201, he necessarily engages in land use planning under § 202. The plain langua ge of § 201 belies this suggestion: the Secretary is legislatively directe d by § 201 to maintain “on a continuing basis” an inventory of the public lands, which must be “kept current so as to reflect changes in conditions and to identify new and emerging resource and other values.” 43 U.S.C. § 1711(a).23 These eight factors are: (1) land areas for specif ic use, designation, or transfer; (2) allowable resource uses; (3) resource condition goals and objectives; (4) program constraints; (5) need for more specific and detailed plans; (6) support action necessary to achieve goals; (7) general impl ementation sequences of planned actions; and (8) intervals and standards fo r monitoring and evaluating the plan. See 43 C.F.R. § 1601.0-5(k). -33- Though Plaintiffs urge otherwise, the 1996 inventory cannot be characterized as a “land use plan,” “land use progr am,” “land use regulation,” or “land use decision,” requiring public participation under § 202. For example, the regulations under § 202 describe a “land use plan” as a written document which addresses eight factors 23 and which is “designed to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses.” 43 C. F.R. §§ 1601.0-5(k), 1601.0-2. Section 201, on the other hand, explicitly provides that “[t]he preparation and maintenance of [an] inventory ... shall not, of its elf, change or prevent change of the management or use of public lands.” 43 U.S.C. § 1711(a). This express limitation on the consequences of conducting an inv entory supports Defendants’ contention that neither the inventory nor the report based on the inventory make any decisions concerning the management or use of t he public lands. Defendants have consistently maintained that once t he Secretary reviews the report based on the 1996 inventory, the Secreta ry will make the report public and determine what further action, if any, will be taken. Defendants have further24 Although FLPMA § 202 requires the Secretary to relyon the inventory of

the public lands when revising a land use plan, the inventory is only one of nine factors the Secretary is directed to consider. See 43 U.S.C. § 1712(c). Further, nothing in the statute or the regulations indicates that Plaintiffs would be precluded from challenging the results of the inven tory if those results are utilized in proposing a revision to a land use plan. -34- acknowledged that if they later decide to consider amending the land use plan to manage lands included in the inventory as WSAs, the y will be required to comply with NEPA and FLPMA § 202, thereby affording Plaint iffs full public participation rights. 24 If Defendants amend the plan without allowing Pla intiffs to participate in the process, Plaintiffs may bring a claim to set aside the amendment. See National Parks & Conservation Ass’n v. FAA , 998 F.2d 1523, 1529-31, 1533 (10th Cir. 1993) (setting aside land use plan amendment because BLM failed to give sufficient notice and comment). If Defendants later decide to recommend wilderness legislation for the lands being inventoried, they will be required to c omply with NEPA, which provides opportunities for public comment. See, e.g. , NEPA § 102, 42 U.S.C. § 4332; 40 C.F.R. §§ 1506.6, 1506.8. If Defendants f ail to comply with NEPA, Plaintiffs may bring suit at the appropriate time. See Committee to Save the Rio Hondo v. Lucero , 102 F.3d 445 (10th Cir. 1996) (holding plaintiffs had standing to challenge Forest Service decision which was alle gedly made without complying with NEPA); Trustees for Alaska v. Hodel , 806 F.2d 1378 (9th Cir. 1986)25 Any future injury Plaintiffs may suffer from the su bmission of the

inventory report directly to Congress is speculativ e at best. As the district court itself recognized, “it is not presently known what the results of the reinventory will be or for that matter whether the Plaintiffs w ill disagree with those results.” Given this uncertainty and the uncertainty of what Congress might do, if anything, with the report, we are left with “a conjecture bas ed on speculation that is bottomed on surmise.” Wyoming ex rel. Sullivan v. Lujan , 969 F.2d 877, 882 (10th Cir. 1992) (holding Wyoming lacked standing to challenge Secretary’s exchange of federally owned coal for easement).

26 Plaintiffs also apparently argue they have been inj ured because they were not allowed to comment on the adoption of the 1996 Procedures, in violation of FLPMA and the APA. It is unclear upon which provis ion of FLPMA Plaintiffs base their claim. In their Complaint, Plaintiffs r eference both FLPMA § 309 and FLPMA § 310. Neither of these provisions provide abasis for their claim. Section 309 provides that the Secretary, by regulation, shall establish proce dures, including public hearings where appropriate, to give the Fede ral, State, and local governments and the public adequate notice an d an opportunity to comment upon the formulation of standards and cr iteria for, and to -35- (enjoining government from submitting report to Con gress because government failed to comply with public participation requirem ents of NEPA). Further, if, as Plaintiffs fear, a report based on the inventory is given directly to Congress, bypassing any public participation at the local lev el, Congress will certainly not be bound by the report, as it has complete discreti on in designating public lands as wilderness. 25 This court therefore concludes FLPMA § 201 does notrequire public participation during the inventory process. Plaint iffs’ claim that they are injured by the denial of public participation with respect to the 1996 inventory is consequently without merit. 26 Plaintiffs therefore have no standing to challeng eparticipate in, the preparation and execution of pl ans and programs

for, and the management of, the public lands. 43 U.S.C. § 1739(e). As previously discussed, the 1996 inventory is not a land use “plan” or “program” and does not affect the man agement of the public lands. Therefore, Plaintiffs’ claim that they were denied an opportunity to comment on the 1996 Procedures under § 309 is without merit. Section 310 provides the Secretary with general rul e-making authority to carry out the purposes of FLPMA and requires the Se cretary to promulgate rules and regulations in accordance with the rule-making provisions of the APA. See 43 U.S.C. § 1740. To the extent Plaintiffs general ly allege they were injured because they were denied an opportunity to comment on the 1996 Procedures under the APA, their argument is unpersuasive. Pla intiffs have not identified a concrete injury resulting from the alleged procedur al violation, but have merely asserted their “interests in ensuring that Defendants employ public procedures and standards are injured by Defendants’ recent failure to do so.” “This abstract, generalized ‘injury’ is not sufficient to afford st anding.” Animal Legal Defense Fund, Inc. v. Glickman, 130 F.3d 464, 471 (D.C. Cir. 1997) (holding allegat ion that Secretary failed to comply with notice and com ment provisions of APA was insufficient to afford standing because plaintiff “ failed to make the case that it has suffered a concrete injury as distinguished fro m the abstract procedural right to submit comments”). Moreover, it is difficult to understand how Plainti ffs could be injured from the allegedly improper promulgation of the procedur es used to conduct the inventory when they cannot identify a concrete inju ry from the inventory itself.

27 H.R. 1500 and H.R. 1745 were introduced before the 104th Congress in 1995. H.R. 1500 would have designated approximatel y 5.7 million acres of federal lands in Utah as wilderness, whereas H.R. 1 745 would have designated -36- the inventory based on this alleged injury. See Claybrook, 111 F.3d at 907; Arjay , 891 F.2d at 898. 3. Imposition of a Wilderness Management Standard Plaintiffs further allege that Defendants have been unlawfully imposing a de facto wilderness management standard on non-WSA public lands included in the H.R. 1500 and H.R. 1745 wilderness bills 27as a result of a November 1993approximately 2.1 million acres as wilderness. Nei ther bill passed. See supra

note 4 (discussing wilderness bills). The 1996 inv entory includes all public lands identified in the H.R. 1500 and H.R. 1745 wildernes s bills. See 1996 Procedures, supra . 28 Plaintiffs quote the following language from the Se cretary’s letter: “I want you to make sure that any BLM management decis ions affecting potential wilderness on BLM lands in Utah, whether within formally designated WSA’s or not, are given your careful attention.”

29 The IMP was initially adopted to guide the manageme nt of the public lands subject to the FLPMA § 603 process. See supraPart I.A. According to Plaintiffs, the IMP has been extended by policy to lands designated as WSAs pursuant to FLPMA § 202. -37- letter from the Secretary to the BLM Utah State Dir ector. 28 In claiming that Defendants are imposing a “de facto wilderness mana gement standard,” Plaintiffs argue that Defendants are essentially imposing an I MP standard, which is used to ensure the continuing suitability of public lands f or designation as wilderness. Plaintiffs assert that only those lands designated as WSAs pursuant to FLPMA § 603 or FLPMA § 202 may be managed under an IMP st andard. 29 According to Plaintiffs, application of the IMP standard preclud es many uses on federal lands, which in turn limits access to and uses of state tr ust lands surrounded by the particular federal lands (“inheld” state trust land s). Plaintiffs assert that Defendants’ imposition of a wilderness management standard on non-WSA public lands violates FLPMA. P laintiffs argue that to lawfully impose such a standard, the lands must be formally designated as WSAs and the relevant land use plan must be amended. Fu rther, in amending the land-38-

use plan, Defendants must comply with the public pa rticipation requirements of FLPMA § 202. Plaintiffs allege they have been inju red by the imposition of the wilderness management standard because it impairs their ability to lease inheld state trust lands for grazing and mineral developme nt. To satisfy the traceability requirement of constitu tional standing, Plaintiffs must show there is a “causal connection between the injury and the conduct complained of--the injury has to be ‘fairly ... tra ce[able] to the challenged action of the defendant.’” Defenders of Wildlife , 504 U.S. at 560 (alteration and ellipses in original) (quoting Simon v. Eastern Ky. Welfare Rights Org. , 426 U.S. 26, 41- 42 (1976)). Even if Plaintiffs do show an injury-i n-fact with a causal nexus to the 1996 inventory, this alone is insufficient to estab lish Article III standing. Plaintiffs must also show “there is at least a ‘sub stantial likelihood that the relief requested will redress the injury claimed.’” Baca v. King , 92 F.3d 1031, 1036 (10th Cir. 1996) (quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc. , 438 U.S. 59, 75 n.20 (1978) (internal quotations om itted)). Significantly, Plaintiffs do not allege that Defend ants’ initial imposition of the de facto wilderness management standard was in any way related to Defendants’ decision to conduct the inventory. Rat her, Plaintiffs allege the standard was imposed in response to a letter writte n by the Secretary in 1993, three years before the Secretary undertook the inve ntory. Therefore, Plaintiffs’30 Whether Plaintiffs have standing to directly challe nge Defendants’ alleged

imposition of a de facto wilderness management stan dard is discussed in infra Part II.C. At this juncture, we merely conclude th at Plaintiffs do not have standing to challenge the 1996 inventory based on t heir alleged injury from imposition of the standard.

31 As the basis for this conclusion, Plaintiffs first assert that under the 1996 Procedures, the public lands included in the invent ory “will be considered extensions of existing WSAs.” Plaintiffs then asse rt that because WSAs are managed under the IMP, “[i]t follows that Defendant s will manage these units under the IMP standards.” To support their assertion that the public lands in cluded in the 1996 inventory “will be considered extensions of existin g WSAs,” Plaintiffs apparently rely on the following statement in the 1996 Procedu res: “When review units are contiguous to WSAs, they should be considered an extension of the WSA so that no additional evaluation of outstanding opportuniti es is required.” 1996 Procedures , supra . Read in context, this statement provides that re view units contiguous to existing WSAs are to be considered extensions of those WSAs in determining whether the units possess “outstanding opportunities for solitude or a primitive and unconfined type of recreation,” which is one of several factors for determining whether public lands have wilderness ch aracteristics. See id. Contrary to Plaintiffs’ suggestion, the Procedures do not provide that these review -39- alleged injury is not fairly traceable to the 1996 inventory nor is it likely to be redressed by enjoining the inventory. Accordingly, Plaintiffs have no standing to challenge the inventory based on the alleged imposi tion of a de facto wilderness management standard. 30 While not premising their challenge to the 1996 inv entory on the initial imposition of a de facto wilderness management stan dard, Plaintiffs do make a failed attempt to link the two prospectively. Spec ifically, Plaintiffs allege that Defendants will formalize the wilderness managementstandard as a result of the inventory. 31 Plaintiffs also allege that, “[i]n light of Defen dants’ past actions,”units will automatically be managed under the IMP s imply because they are

considered extensions of existing WSAs for this one specific evaluation purpose. -40- Defendants will fail to provide for notice and comm ent when they formally adopt the management standard. To satisfy the injury-in-fact requirement of const itutional standing, the burden is on Plaintiffs to show they are “immediate ly in danger of sustaining some direct injury” as a result of the 1996 invento ry and that the threat of injury is “real and immediate, not conjectural or hypothet ical.” City of Los Angeles v. Lyons , 461 U.S. 95, 102 (1983) (internal quotations omitted). Plaintiffs’ bald allegation that Defendants will at some time formal ly manage the lands included in the inventory under the IMP, and that they will do so without public involvement in violation of FLPMA, is not sufficient to satisfy this burden. Their claimed injury is purely speculative, in that it is based solely on their assertion that Defendants will violate the law at some undete rmined time in the future. Consequently, their claim does not satisfy the case or controversy requirements of Article III. See Defenders of Wildlife , 504 U.S. at 564 n.2 (discussing “imminency” requirement of constitutional standing and stating that purpose “is to ensure that the alleged injury is not too specul ative for Article III purposes-- that the injury is ‘ certainlyimpending’” (internal quotation marks omitted)).-41-

If Defendants do in fact amend the land use plan to manage the lands included in the inventory as WSAs under the IMP, an d do so without the public participation required by FLPMA § 202, Plaintiffs m ay challenge the plan amendment at that time. See supraPart II.B.2. If Plaintiffs are then entitled to relief, the appropriate remedy would be to enjoin t he misuse of the inventory, not its preparation. At this point, however, Plaintiff s have not suffered a concrete, actual or imminent injury and thus have no standing to challenge the 1996 inventory on these grounds.
4. Roads In their Complaint, Plaintiffs assert that the 1996 Procedures adopted for the 1996 inventory contain a different definition o f “roadlessness” than the WIH, which was adopted for the original FLPMA § 603 wild erness review process. A determination of “roadlessness” is a prerequisite t o a finding of wilderness. See FLPMA § 603, 43 U.S.C. § 1782(a). Plaintiffs speci fically claim the 1996 Procedures exclude from consideration the following , all of which were considered under the WIH: “(a) roads that are regu larly and continuously used, even if there is no regular mechanical maintenance; (b) roads maintained by tools but not by mechanical means; and (c) whether there is public support for the use of the road.” As a result of the new definition of “roadlessness” utilized by the 1996 Procedures, Plaintiffs assert that more public lands reviewed in the 1996-42-

inventory will be considered “roadless” than under the WIH and, consequently, more lands will be considered suitable for wilderne ss designation. In their Complaint, Plaintiffs allege the change in definition of “roadlessness” violates the APA because it is an arbitrary change in interpretation of the WIH and FLPMA. Plaintiffs claim their “inte rests are injured by Defendants’ failure to explain the significant chan ges in ... interpretation.” As we have already discussed, a generalized grievance that Defendants are acting in violation of the law is not sufficient to afford st anding. See supraPart II.B.1. To establish standing, Plaintiffs must identify a conc rete injury flowing from Defendants’ allegedly unlawful change in interpretation. While far from clear, Plaintiffs apparently allege they are injured as a result of their inability to comment on whether the partic ular lands included in the 1996 inventory are roadless. Plaintiffs argue that if t he 1996 Procedures had used the same definition of “roadlessness” as the WIH, the r equirement to consider public support for the use of a road would have allowed th em to comment. The WIH is not controlling, however, as it was adopted for purposes of the FLPMA § 603 wilderness designation process, not for the purpose of conducting inventories under the authority of FLPMA § 201. Therefore, the WIH does not provide Plaintiffs with a right to comment in this instance . As previously discussed, Plaintiffs also have no right under § 201 to partic ipate in the inventory process.-43-

See supraPart II.B.2. Again, if Defendants later rely on t he results of the inventory in amending the land use plan for the lan ds included in the inventory, Defendants will be required under FLPMA § 202 to pr ovide the public with an opportunity to comment. Plaintiffs also claim that Defendants changed theirroad maintenance policies as a result of their decision to conduct t he 1996 inventory. In support of their motion to preliminarily enjoin Defendants fro m completing the inventory, Plaintiffs submitted several affidavits from variou s county officials discussing changes to Defendants’ road maintenance policies si nce the inventory was commenced. Specifically, the affiants testified th at Defendants revoked a cooperative road agreement, required counties to se ek permission to maintain their own roads, and initiated trespass actions aga inst certain counties for routine road maintenance activities. To link the alleged c hange in road maintenance policies to Defendants’ decision to conduct the inv entory, Plaintiffs primarily rely on the temporal proximity of Defendants’ actions to the inventory. Plaintiffs also rely on what they term “admissions” by BLM official s concerning the relationship between the alleged change in policy and Defendants ’ decision to undertake the inventory. In response, Defendants argue that neither their de cision to conduct the inventory nor the 1996 Procedures “establish, chang e, or even address, any-44-

policies regarding road maintenance in Utah.” Defe ndants particularly note the trespass actions against the counties have not beenlimited to just those lands included in the inventory: counties have also been sued for unauthorized “destructive activities” on WSAs and National Park Service lands. We first note it is questionable whether the allege d changes to road maintenance policies can be traced to Defendants’ d ecision to conduct the inventory. Regardless, enjoining the inventory is not substantially likely to redress Plaintiffs’ injuries. Assuming that Defend ants have changed their road maintenance policies as a result of their decision to conduct the inventory, enjoining Defendants from completing the inventory would not require them to reinstate their previous road maintenance policies. To redress their injuries, Plaintiffs would need specific relief addressing th e alleged changes in road policies, such as a judgment requiring Defendants t o adhere to a specific agreement, a declaration that Defendants improperly required county officials to seek permission to maintain a particular road, or a n injunction against a specific trespass action. Cf. Humboldt County v. United States , 684 F.2d 1276, 1278 (9th Cir. 1982) (considering county’s argument that BLM’ s closure of two roads was improper because county held right-of-way in the ro ads and because BLM failed to comply with applicable law in closing the roads) . Plaintiffs have sought no such relief in this case. Thus, because enjoining the inventory would not remedy32 To the extent Plaintiffs claim the alleged changes to road maintenance

policies are attributable to Defendants’ imposition of a de facto wilderness management standard, their claim is encompassed in the cause of action directly challenging imposition of the standard. See infraPart II.C. -45- Plaintiffs’ claimed injuries resulting from the all eged changes to road maintenance policies, Plaintiffs have not satisfied the redressability requirement of constitutional standing. 32 Cf. Baca , 92 F.3d at 1037 (holding lessee of federal land lacked standing to challenge exchange of feder al land for private land because voiding the exchange was not likely to resu lt in BLM renewing the grazing lease, thereby redressing lessee’s injury); Wyoming ex rel. Sullivan , 969 F.2d at 881-82 (holding State lacked standing to ch allenge exchange of federally owned coal for conservation easement because voidin g the exchange would not necessarily result in BLM offering the coal for competitive leasing, thereby redressing State’s injury).
5. NEPA Violation Finally, Plaintiffs assert they are injured by Defe ndants’ failure to prepare an EIS in violation of NEPA. NEPA requires all fed eral agencies to “include in every recommendation or report on proposals for leg islation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official” add ressing certain environmental considerations. NEPA § 102, 42 U.S.C. § 4332(2)(C) . The term “major federal33 This court need not accept Plaintiffs’ allegation t hat the 1996 inventory

constitutes a “major federal action,” necessitating preparation of an EIS. Although this issue is intertwined with the merits of Plaintiffs’ claim, we conclude it is appropriate to resolve the issue to the extent necessary to determine whether Plaintiffs have suffered an injury-in-fact for standing purposes. See supranote 20 (discussing appropriateness of resolving l egal questions to determine standing). To the extent Plaintiffs allege that imposition of a de facto wilderness management standard constitutes a “major federal ac tion” requiring preparation of an EIS, their claim is encompassed in the cause of action directly challenging imposition of the standard. See infraPart II.C. -46- action” “includes actions with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18. The regulations to FLPMA § 202 provide that “[a]pproval of a [land use] plan is considered a major Federal action.” 43 C.F.R. § 16 01.0-6. If a federal agency is required to prepare an EIS and fails to do so, an a ction may be brought to compel compliance with NEPA. See Committee to Save the Rio Hondo , 102 F.3d at 452 (holding environmental organization had standing to challenge Forest Service decision which was allegedly made without complying with NEPA). Plaintiffs assert the 1996 inventory constitutes a “major federal action,” thereby requiring compliance with NEPA. 33 We fail to see, however, how an inventory of public lands constitutes a “major fede ral action significantly affecting the quality of the human environment.” N EPA § 102, 42 U.S.C. § 4332(2)(C). FLPMA § 201 expressly provides that aninventory “shall not, of itself, change or prevent change of the management or use of public lands.” 43-47-

U.S.C. § 1711(a). Further, as we have already disc ussed, the 1996 inventory does not constitute an amendment to or revision of a lan d use plan. See supraPart II.B.2. The inventory also cannot be characterized as a “proposal for legislation.” As previously stated, if Defendants later utilize t he report based on the inventory in recommending wilderness legislation or if they d ecide to amend the land use plan, they will be required to comply with NEPA at that time. At this stage, however, NEPA does not require preparation of an EI S. See Fund for Animals, Inc. v. Thomas , 127 F.3d 80, 84 (D.C. Cir. 1997) (holding nationa l policy which “maintained the substantive status quo ” could not be characterized as a “major federal action”); Sabine River Auth. v. U.S. Dep’t of Interior , 951 F.2d 669, 679 (5th Cir. 1992) (holding federal government’s “acqu isition of negative easement which by its terms prohibits any change in the stat us quo does not amount to [a] ‘major Federal action[]’” (second alteration in ori ginal)). Therefore, Plaintiffs’ claim that they are injured by Defendants’ failure to prepare an EIS for the 1996 inventory is without merit and does not constitute a foundation upon which to premise standing. Cf. Claybrook, 111 F.3d at 907 (“[I]f the plaintiffs’ claim has no foundation in law, he has no legally protected i nterest and thus no standing to sue.”); Arjay , 891 F.2d at 898 (“We hold that appellants lack st anding because the injury they assert is to a nonexistent right ....”)

. 6. Summary34 Plaintiffs moved for a preliminary injunction only with respect to the

1996 inventory. Plaintiffs did not move for a prel iminary injunction to enjoin Defendants from imposing the de facto management st andard. In arguing against Plaintiffs’ motion to enjoin the inventory, Defenda nts did not directly challenge Plaintiffs’ standing to bring their de facto manage ment claim. Further, in their -48- Plaintiffs have failed to identify a concrete, actu al or imminent injury-infact which is fairly traceable to the 1996 inventory and likely to be redressed by a favorable decision. As a consequence, the power of judicial review does not now extend to the 1996 inventory conducted by the execu tive branch. In light of our conclusion that Plaintiffs lack constitutional stan ding, we need not address whether prudential limitations or the statutory req uirements for judicial review under the APA would also preclude review of Plainti ffs’ claims. See Baca , 92 F.3d at 1037. The district court’s order enjoining Defendants from completing the inventory is therefore vacated. We remand to t he district court to dismiss those causes of action related directly to the inve ntory, i.e., Plaintiffs’ first, second, third, fourth, fifth, seventh, and eighth c auses of action.

C. Standing to Challenge De Facto Wilderness Management We next consider whether Plaintiffs have standing t o directly challenge Defendants’ alleged imposition of a de facto wilder ness management standard on non-WSA federal lands, in violation of FLPMA. In d etermining whether Plaintiffs have standing to bring this claim, theirsixth cause of action, we apply the motion to dismiss standard. 34briefs on appeal, both parties focused on the inven tory and did not specifically

address whether imposition of a de facto managementstandard could be brought as an independent cause of action. In light of the se facts, we apply the more lenient motion to dismiss standard in determining w hether Plaintiffs have standing to bring their de facto management claim. -49- As previously discussed, Plaintiffs allege that Def endants began imposing the de facto management standard in response to a l etter written by the Secretary in 1993, three years before the Secretary announced his decision to conduct the 1996 inventory. See supraPart II.B.3. Plaintiffs’ claim that Defendants ar e currently imposing such a standard is therefore notdirectly related to Defendants’ decision to conduct the 1996 inventory. Accordingl y, Plaintiffs’ de facto management cause of action is not foreclosed by ourdecision that Plaintiffs lack standing to challenge the inventory. To the extentPlaintiffs base their standing to challenge the 1996 inventory on this cause of actio n, however, we have considered and rejected their argument. Plaintiffs essentially argue that imposition of th e de facto wilderness management standard amounts to an “informal” amendm ent to the land use plan. As previously discussed, FLPMA § 202, which governs land use plans, provides for public participation throughout the land use pl anning process, including amendments to land use plans. See supraPart II.B.2. Plaintiffs assert they were denied an opportunity to comment on the amendment a nd allege they have been35 See supranote 28 (quoting statement from Secretary).

36 There are three separately named Plaintiffs in this suit: the State of Utah, the Utah School and Institutional Trust Lands Admin istration, and the Utah Association of Counties. This court concludes the Trust Lands Administration, which is most directly injured by imposition of a d e facto wilderness management -50- injured because imposition of the standard impairs their ability to lease their state trust lands. In support of their claim that Defendants are curre ntly imposing a de facto wilderness management standard, Plaintiffs referenc e only a nebulous statement made by the Secretary in 1993. 35 Importantly, Plaintiffs allege no specific interferences with their state trust lands resultin g from such management. Before the district court, Plaintiffs submitted an affidav it from the Director of the State Trust Lands Administration to support their motion for a preliminary injunction to enjoin the inventory. This affidavit, however, doe s not support Plaintiffs’ allegation that Defendants are currently imposing ade facto wilderness management standard, but rather discusses generallythe effects on inheld state trust lands when surrounding federal lands are mana ged as WSAs under the IMP or are designated as wilderness. Nevertheless, because general allegations of injurybased on a legally cognizable right suffice at this stage, and because we must accept as true Plaintiffs’ factual allegations, we conclude that P laintiffs do have standing to bring their de facto management claim. 36 Courts have recognized that anstandard, has standing to pursue the de facto wilde rness management cause of

action. Because we have concluded that one of the Plaintiffs has standing to bring the claim, we need not consider whether the o ther two Plaintiffs would also have standing to bring the claim. See Watt v. Energy Action Educ. Found. , 454 U.S. 151, 160 (1981).

37 The redressability and immediacy requirements are r elaxed somewhat for those persons seeking to enforce procedural rights. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 572 n.7 (1992). For example, the p laintiff need not establish with certainty that adherence to the proc edures would necessarily change the agency’s ultimate decision. See id. ; see also Committee to Save the Rio Hondo v. Lucero , 102 F.3d 445, 452 (10th Cir. 1996). -51- individual may enforce procedural rights “so long a s the procedures in question are designed to protect some threatened concrete in terest of his that is the ultimate basis of his standing.” Defenders of Wildlife , 504 U.S. at 573 n.8. Plaintiffs have alleged a violation of their proced ural rights under FLPMA and have alleged they are harmed by Defendants’ imposit ion of the de facto wilderness management standard. Plaintiffs have re quested that Defendants be enjoined from imposing the de facto standard at lea st until they comply with FLPMA by formally amending the land use plan and pr oviding for notice and comment. Thus, Plaintiffs’ injuries are redressabl e by a favorable decision. 37 Plaintiffs have also satisfied the standing require ments of the APA: Defendants’ alleged imposition of the de facto wild erness management standard constitutes a final agency action, and Plaintiffs’ claims fall within the zone of interests protected by FLPMA. See Catron County , 75 F.3d at 1434 (holding APA standing requirements satisfied where county al leged Secretary failed to-52-

comply with NEPA when designating critical habitat) . We therefore conclude Plaintiffs have standing to pursue their de facto m anagement cause of action. Their sole available remedy, as requested in their Complaint, is an injunction prohibiting the alleged imposition of the de facto wilderness management standard until and unless Defendants comply with FL PMA. We emphasize, however, that our decision is limited to the threshold issue of whether Plaintiffs’ claim can survive a motion t o dismiss. This court expresses no view on whether Plaintiffs’ claim could survive a motion for summary judgment or whether their claim should succeed on t he merits. We also note that if Defendants move for a summary judgment, Plaintif fs “can no longer rest on such ‘mere allegations’ [of injury], but must ‘set forth’ by affidavit or other evidence ‘specific facts’” in support of their clai m. Defenders of Wildlife , 504 U.S. at 561 (quoting Fed. R. Civ. P. 56(e)).
III. CONCLUSION This court concludes Plaintiffs do not have standin g to challenge the 1996 inventory. Due to our resolution of the standing i ssue, we need not address Defendants’ ripeness argument nor need we address D efendants’ argument that the district court abused its discretion in grantin g Plaintiffs’ motion for a preliminary injunction.38 Plaintiffs’ unopposed motion to supplement the reco rd on appeal is hereby

granted. -53- Because Plaintiffs lack standing to challenge the 1 996 inventory, we
VACATE the preliminary injunction entered by the districtcourt enjoining Defendants from further work on the inventory and REMAND to the district
court with instructions to DISMISS the seven causes of action directly related to the inventory. Finally, we REMAND to the district court for further consideration the one cause of action not directly related to the inventory, Plaintiffs’ sixth cause of action, claiming that De fendants are currently imposing a de facto wilderness management standard on non-WS A public lands, in violation of FLPMA. 38