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.

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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 Attorney, Salt Lake City, Utah, with

her on the briefs), for Defendants-Appellants.

Constance E. Brooks, C. E. Brooks & Associates, Denver, Colorado (Michael B.

Marinovich, C. E. Brooks & Associates, Denver, Colorado; Jan Graham, Attorney

General for the State of Utah, and Stephen G. Boyden, Assistant Attorney

General, State of Utah, Salt Lake City, Utah; Ronald W. Thompson and Stephen

H. Urquhart, Thompson & Associates, St. George, Utah; John W. Andrews,

Special Assistant Attorney General for the Utah School and Institutional Trust

Lands Administration, Salt Lake City, Utah, with her on the briefs), for PlaintiffsAppellees.

Heidi J. McIntosh, Southern Utah Wilderness Alliance, 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 Sierra 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 Secretary 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 from proceeding further with

the inventory. We exercise jurisdiction under 28 U.S.C. § 1292(a)(1). Because

we conclude that Plaintiffs lack standing to challenge the inventory, we vacate 

the preliminary injunction and remand with instructions 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 not directly related to the inventory.

I. BACKGROUND

A. Summary of Utah Wilderness Debate

A brief review of the history of the wilderness debate in Utah is necessary

to put the facts of this case into context. In 1976, Congress enacted the Federal

Land Policy and Management Act (“FLPMA”) to, among other things,

“[e]stablish a mission for the public lands administered by the Secretary of the

Interior through the Bureau of Land Management” (“BLM”). 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 nation’s land and are primarily

located in eleven western states and Alaska. See id. 
1The definition of “wilderness” is taken from the Wilderness Act of 1964,

which defines “wilderness” as

an area where the earth and its community of life are untrammeled by

man, where man himself is a visitor who does not remain. An area of

wilderness is further defined to mean ... an area of undeveloped

Federal land retaining its primeval character and influence, without

permanent improvements or human habitation, which is protected and

managed so as to preserve its natural conditions and which (1)

generally appears to have been affected primarily by the forces of

nature, with the imprint of man’s work substantially unnoticeable; (2)

has outstanding opportunities for solitude or a primitive and

unconfined type of recreation; (3) has at least five thousand acres of

land or is of sufficient size as to make practicable its preservation

and use in an unimpaired condition; and (4) may also contain

ecological, geological, or other features of scientific, 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 continuing 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 fifteen years certain “roadless areas

of five thousand acres or more” and report to the President recommendations

concerning the “suitability or nonsuitability” of each area for preservation as

wilderness.1 43 U.S.C. § 1782(a). Within two years after receiving the

Secretary’s recommendations, the President was to advise 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 nationwide wilderness

review program in accordance with the Wilderness Inventory Handbook (“WIH”),

which was adopted to standardize the FLPMA § 603 process. See BLM, U.S.

Dep’t of the Interior, Wilderness Inventory Handbook 3 (1978) [hereinafter WIH].

The review proceeded in three stages: (1) the “inventory” phase, consisting of (a)

an “initial inventory” to identify “wilderness inventory 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, designation of the units as

“wilderness study areas” (“WSAs”); (2) the “study” phase, during which WSAs

were studied to determine whether the lands were suitable for designation as

wilderness; and (3) the “reporting” phase, consisting 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 “manage [the lands subject to

the wilderness review process] ... so as not to impair the suitability of such areas

for preservation as wilderness.” 43 U.S.C. § 1782(c). To implement this
2The lands subject to the FLPMA § 603 review process are managed under

the IMP until Congress designates the lands as wilderness 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 involving

approximately 925,000 acres of public lands); Decision 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 reassessment with

respect to approximately 250,000 acres). 

-6-

directive, BLM adopted the Interim Management Policy and Guidelines for Lands

Under Wilderness Review (“IMP”).2

 See Rocky Mountain Oil, 696 F.2d at 739. 

BLM initially reviewed approximately 22 million acres of federal public

lands in Utah and identified approximately 14.5 million acres that “clearly and

obviously” did not contain wilderness characteristics. See 44 Fed. Reg. 46,541

(1979). BLM subsequently conducted an intensive inventory 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 (1980). In 1980, BLM

completed the inventory phase of the § 603 wilderness review process for public

lands in Utah and, after a public comment period, published its final inventory

decision designating approximately 2.5 million acres as WSAs. See 45 Fed. Reg.

75,602 (1980). In 1991, after lengthy administrative appeals,3

 then-Secretary

Manuel Lujan, Jr. recommended to President George Bush 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 Enid Greene sponsored

H.R. 1745, which would have designated approximately 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 Senate. Various environmental

groups supported H.R. 1500, which would have designated 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 Representative 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 introduced by Representative Hinchey,

along with its Senate counterpart, S. 773, sponsored by Illinois Senator Richard

Durbin. To date, none of the 1997 bills have passed.

-7-

Utah Statewide Wilderness Study Report 3 (1991). Shortly thereafter, President

Bush forwarded the 1.9 million acre recommendation to Congress. Although

various groups, including the Utah congressional delegation, have supported

legislation to designate federal lands in Utah as wilderness,4 Congress has not yet

passed any such legislation. 

B. 1996 Inventory

On July 24, 1996, Secretary Babbitt sent a letter to Utah Congressman

James Hansen acknowledging the “stalemate” on the Utah wilderness issue and

informing him that “a small team of career professionals, 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 wilderness study areas, and report
5According to Robert V. Abbey, project leader for the 1996 inventory, the

inventory was to include fieldwork, review of resource data from recent aerial

photography, and review of information generated in prior federal and state

reviews and public hearings on the public lands in Utah. 

6

See Letter from James V. Hansen, Orrin G. Hatch, & Robert F. Bennett to

Bruce Babbitt, Secretary of the Interior (Aug. 1, 1996).

-8-

their findings.”5 Letter from Bruce Babbitt, Secretary of the Interior, to James V.

Hansen, Chairman, Subcommittee on National Parks, Forests, and Public Lands 2

(July 24, 1996). Babbitt noted the team was “explicitly 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 Senators Orrin Hatch

and Robert Bennett, strongly opposed Babbitt’s plan to “re-inventory” federal

lands in Utah,6 the BLM team began its inventory fieldwork in September 1996. 

The team proceeded with the inventory in accordance with the Utah Wilderness

Review Procedures (“1996 Procedures”), which were adopted by BLM

specifically for purposes of the 1996 inventory and which incorporated various

provisions of the WIH.

According to the Defendants in this action, the sole 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 unsuitability of the lands for
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management as wilderness and neither the inventory nor the report will affect the

management of the public lands. Babbitt has consistently 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 Counties (collectively,

“Plaintiffs”) filed suit in federal district court challenging the 1996 inventory on

various grounds and seeking to enjoin the Secretary and 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 (collectively, “Defendants”).

Plaintiffs alleged the following eight causes of action: (1) unauthorized

inclusion of state trust lands in the lands being inventoried; (2) arbitrary and

unequal treatment of Utah, in violation of the U.S. Constitution; (3) conducting

the inventory without authority; (4) failure to provide for public involvement in

the inventory, in violation of FLPMA; (5) failure to follow rule-making

procedures when promulgating the 1996 Procedures, in violation of FLPMA; (6)

de facto wilderness management of non-WSA federal lands, in violation of

FLPMA; (7) arbitrary change in interpretation of FLPMA and the WIH; and (8)
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failure to prepare an environmental impact statement (“EIS”), in violation of the

National Environmental Policy Act (“NEPA”). Plaintiffs further alleged generally

that Defendants’ actions exceeded their statutory authority and were arbitrary and

capricious, and should therefore be declared unlawful and set aside under the

Administrative Procedure Act (“APA”). 

In their Complaint, Plaintiffs requested the following relief: (1) a

declaration that Defendants have no authority to conduct the inventory or adopt

the 1996 Procedures; (2) a declaration that Defendants’ inclusion of state trust

lands in the inventory violates the Utah Enabling Act of 1894, FLPMA, and the

U.S. Constitution; (3) a declaration that Defendants’ adoption of the 1996

Procedures and their implementation of the inventory violates FLPMA; (4) a

declaration that Defendants’ imposition of different review criteria and

procedures for public lands in Utah violates the Utah Enabling Act of 1894,

FLPMA, and the U.S. Constitution; (5) a declaration that the inventory is a

“major federal action that may significantly affect the environment,” necessitating

preparation of an EIS; (6) an injunction prohibiting 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 lands until such time as

they comply with FLPMA; (8) an injunction prohibiting Defendants from making
7A party seeking a preliminary injunction must show the following: (1) that

it will suffer an irreparable injury absent an injunction; (2) that the threatened

injury outweighs the harm an injunction may cause the opposing party; (3) that an

injunction would not be adverse to the public interest; 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).

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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 their Complaint, they filed

a motion seeking a temporary restraining order and preliminary injunction, asking

the district court to enjoin Defendants from completing the inventory and from

using information gathered during the inventory process.7

 Plaintiffs relied on

three arguments to support their motion: (1) Defendants violated FLPMA by

failing to allow public involvement in the inventory process; (2) Defendants

violated the APA and FLPMA by failing to allow public 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 arguing (1) Plaintiffs would

not suffer any irreparable injury if their motion was denied; (2) the case was not

ripe for review, as there was no “final agency action” 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
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1996 Procedures did not require informal rule-making, and the Procedures were

not arbitrary or capricious.

After a hearing, the district court granted Plaintiffs’ motion and enjoined

Defendants from proceeding with the inventory. The court first concluded

Plaintiffs were likely to prevail on their legal claims. 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 preliminary injunction. The court

stated that “[i]f the Plaintiffs are denied involvement 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 results 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 criteria and conducting the

inventory without public scrutiny.” Finally, the court concluded that the balance
8The court did not address Defendants’ claim that the case was not ripe for

review.

9We note that approximately 45 days after oral argument in the appeal of

this case, Plaintiffs filed a Motion to Remand to the District Court for the

Jurisdictional Issues of Standing, Ripeness, and Final Agency Action. In arguing

that this court should remand to the district court, Plaintiffs noted they were

granted leave to amend and supplement the Complaint to add an ultra vires claim,

which affected the standing analysis. Plaintiffs also argued they had uncovered

documents during formal discovery which provided additional support for their

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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 enjoining them from

completing the 1996 inventory and argue that Plaintiffs’ claims should be

dismissed for lack of standing and ripeness. In the alternative, Defendants argue

the district court abused its discretion in granting the preliminary injunction

because Plaintiffs cannot show a likelihood of success on the merits. In support

of this alternative position, Defendants assert that BLM is authorized to conduct

the inventory, that no public participation is required 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 jurisdiction by attacking

Plaintiffs’ standing to bring their claims.9 The requirement of standing “‘involves
allegations of injury-in-fact. Plaintiffs additionally noted they had recently

responded to Defendants’ motion to dismiss in the district court, which was their

first opportunity to fully address the standing issue. Defendants opposed the

motion, arguing the standing issue had been fully briefed and argued in this

appeal. This court denied Plaintiffs’ motion. Plaintiffs’ amended Complaint is

not before us. We therefore consider only the allegations in Plaintiffs’ original

Complaint.

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both constitutional limitations on federal-court jurisdiction 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 standing is

grounded in Article III of the U.S. Constitution, which restricts federal court

adjudication to actual cases or controversies. See Allen v. Wright, 468 U.S. 737,

750 (1984). The doctrinal foundation of Article III standing is the principle of

separation of powers. See id. at 750-52.

Standing is but one of several gatekeepers “‘founded in concern about the

proper--and properly limited--role of the courts in a democratic society.’” Id. at

750 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).

“All of the doctrines that cluster about Article III--not only standing

but mootness, ripeness, political question, and the like--relate in part,

and in different though overlapping ways, to an idea, which is more

than an intuition but less than a rigorous and explicit theory, about

the constitutional and prudential limits to the powers 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 jurisdiction 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 review over the conduct of the

executive or congressional branches by relaxation of 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 each 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 power of the federal

courts is not a mere technical hoop through which every 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 remedy. See Doremus v. Board of
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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 importance 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 suited 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 not a reason to find standing.’” 

(quoting Schlesinger, 418 U.S. at 227)). Notwithstanding its prominent

gatekeeping role, the standing requirement of Article 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) concrete and

particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) that there [is] a causal connection between the

injury and the conduct complained of--the injury must be fairly

traceable to the challenged action of the defendant, and not the result

of the independent action of some third party not before the court;

and (3) that it [is] likely, as opposed to merely speculative, 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.
10Section 10(a) of the APA provides: “A person suffering legal wrong

because of agency action, or adversely affected or aggrieved by agency action

within the meaning of a relevant statute, is entitled to judicial review thereof.” 

5 U.S.C. § 702. The APA further provides:

Agency action made reviewable by statute and final agency action for

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1997). “The party invoking federal jurisdiction bears 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 allege facts demonstrating that [they

are] a proper party to invoke judicial resolution of 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 Article III, ‘the federal

judiciary has also adhered to a set of prudential principles 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 include “the general prohibition on a

litigant’s raising another person’s legal rights [and] the rule barring adjudication

of generalized grievances more appropriately addressed 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 private right of action,

Plaintiffs rely on the judicial review provisions of the APA10 in bringing their
which there is no other adequate remedy in a court are subject to

judicial review. A preliminary, procedural, or intermediate agency

action or ruling not directly reviewable is subject to review on the

review of the final agency action.

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).

12In opposing Plaintiffs’ motion for a preliminary injunction in the district

court, Defendants did not argue that Plaintiffs lacked 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 agency action” for purposes of

proceeding under the APA. Closely related to the injury-in-fact argument,

Defendants also argued that Plaintiffs had not shown they would suffer an

“irreparable” injury in the absence of an injunction. 

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claims. Cf. Lujan v. National Wildlife Fed’n, 497 U.S. 871, 882 (1990) (noting

that plaintiffs did not contend that FLPMA and NEPA provide a private right of

action and that plaintiffs were proceeding under the APA). Consequently, in

addition to the Article III standing requirements,11 Plaintiffs must also meet the

statutory standing requirements of the APA: Plaintiffs must show there has been

some “final agency action” and must “demonstrate that [their] claims fall within

the zone of interests protected by the statute forming 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 standing because they

cannot show an injury-in-fact flowing from the 1996 inventory.12 Defendants also
Standing 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 court 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). 

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argue that Plaintiffs lack standing under the APA because the inventory does not

constitute a “final agency action” and because Plaintiffs 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 considerations ... ‘obviously shade into

those determining whether the complaint states a sound basis for equitable

relief[,]’ [t]he latter set of considerations ... inform 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-specific endeavor, turning on

the precise allegations of the parties seeking relief.’” 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 carefully reviewing the

allegations in Plaintiffs’ Complaint, this court concludes that seven of the eight
13In their briefs on appeal, both parties have focused 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 currently imposing a de facto

wilderness management standard on non-WSA federal lands in violation of

FLPMA, does not stem from Defendants’ decision to conduct 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 action, Plaintiffs claim that

Defendants have unlawfully singled out the State of Utah for “unique and special

study.” In the third cause of action, Plaintiffs claim 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 failing 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 their 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 inventory constitutes a major

federal action that may significantly affect the environment, necessitating

preparation of an EIS.

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causes of action relate directly to the 1996 inventory.13 The only cause of action

not directly related to Defendants’ decision to conduct the inventory is Plaintiffs’

sixth cause of action, claiming that Defendants are currently imposing a de facto

wilderness management standard on non-WSA federal lands, in violation of

FLPMA. 

Although Plaintiffs have alleged eight causes of action, they have not

alleged a distinct identifiable injury for each cause of action. A thorough review

of the allegations in Plaintiffs’ Complaint and the arguments in their appellate
-21-

brief reveals that Plaintiffs essentially allege five types of injury with respect to

all their causes of action: (1) Plaintiffs have generally been injured by

Defendants’ acting in contravention of the law; (2) Plaintiffs have been injured by

denial of their right to participate in the inventory process; (3) Plaintiffs have

been injured by Defendants’ imposition of a de facto wilderness management

standard on non-WSA federal lands, formalization of which is imminent due to

the 1996 inventory; (4) Plaintiffs have been injured by denial of their opportunity

to comment on whether the lands included in the inventory are “roadless” and by

Defendants’ changes to their road maintenance policies; and (5) Plaintiffs have

been injured by Defendants’ failure to prepare an EIS. Analysis of each alleged

injury is necessary to determine whether Plaintiffs have met their burden of

establishing the “irreducible constitutional minimum” 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 constitutional 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 other 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 accept 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 specific 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 injury resulting from the

defendant’s conduct may suffice.” Id. “In response to a summary judgment

motion, however, the plaintiff can no longer rest on such ‘mere allegations,’ but

must ‘set forth’ by affidavit or other evidence ‘specific 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 trial.’” Id. (quoting Gladstone,

Realtors v. Village of Bellwood, 441 U.S. 91, 115 n.31 (1979)).

In their brief, Plaintiffs argue that although Defendants did not file a

motion to dismiss prior to appeal, this court should 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, such
14Plaintiffs 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 beneficiary 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 defendants did not challenge

standing before the district court, but “leav[ing] for another day a determination

of the degree of evidence necessary to support standing at the preliminary

injunction stage when the plaintiff is on notice that 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’ alleged 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 they have been injured

because Defendants are acting without authority and otherwise in contravention of
15In particular, Plaintiffs claim they are injured because (1) Defendants lack

authority to include state trust lands in the 1996 inventory; (2) Defendants have

improperly singled out the State of Utah for “unique and special study”; (3)

Defendants lack authority to conduct the 1996 inventory; and (4) Defendants

arbitrarily changed their interpretation of FLPMA and the WIH. 

16In 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 inventory 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 context16 and for good reason: the mere

allegation that Defendants are acting without authority or in violation of the law

is insufficient to establish standing.

The Supreme Court “has repeatedly held that an asserted 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 government 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 insufficient by itself to meet Art.

III’s requirements.”). To prevail on the merits, Plaintiffs must prove that

Defendants have acted in contravention of the law. To reach the merits, however,

Plaintiffs must first identify a concrete injury flowing 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 fail
17On 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 litigation, however, Defendants

explicitly rejected § 603 as providing the necessary authority to conduct the

inventory. See, e.g., Letter from Bruce Babbitt, Secretary of the Interior, 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 inventory contexts, such as

inventories of newly acquired public lands, BLM has consistently relied on

FLPMA §§ 201 and 202, not § 603, as providing the necessary authority to

conduct the inventories. See, e.g., Wilderness Society, 119 I.B.L.A. 168, 170-72

(1991) (noting “second inventory” of lands previously inventoried under § 603

and inventory of adjacent newly acquired parcels was 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 newly acquired public lands for

wilderness values, and citing § 202 as authority). 

In proceedings before the district court, Defendants relied solely on § 201

as providing authority to conduct the inventory. In their Memorandum in

Opposition to Motion for a Temporary Restraining Order and Preliminary

Injunction, Defendants noted that “[w]hile letters from the Secretary and the State

Director have cited various provisions of FLPMA for the authority to undertake

the re-inventory, section 201(a) provides the authority necessary.” During the

hearing on Plaintiffs’ motion for a preliminary injunction, 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 disagrees. That is not an

injury sufficient to confer standing under Art. III ....”). We therefore consider

Plaintiffs’ additional claims of injury to determine whether Plaintiffs have shown

a concrete injury flowing from Defendants’ allegedly unlawful conduct.17
questioned Defendants’ authority to conduct the inventory. After the hearing,

Defendants requested leave to submit supplemental memoranda 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 wilderness review.” The

district court did not respond to Defendants’ request. 

The 1996 inventory focuses on specific lands previously inventoried under

§ 603 and is limited to determining whether these lands are roadless and possess

wilderness characteristics. See 1996 Procedures, supra. The inventory will not

address the suitability of the lands for management as wilderness. See id. In

determining whether public lands are suitable for designation as wilderness, BLM

considers “all values, resources, and uses of the lands,” 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 process (including interim

wilderness management of WSAs, suitability analysis, and wilderness

recommendations to the President and Congress) than that implemented by the

1996 inventory.

 We agree with Plaintiffs that the Secretary’s express rejection of § 603 in

actions prior to this appeal renders Defendants’ reliance on § 603 before this

court questionable. In addition, Defendants’ sole reliance on § 201 before the

district court suggests that § 603 was merely an afterthought on appeal. We

therefore reject Defendants’ claim that they were conducting 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) (discussing whether

agency action was “arbitrary and capricious” and rejecting “[a]fter-the-fact

rationalization by counsel in briefs or argument”).

18Plaintiffs proceeded before the district court on alternative theories. They

first alleged that Defendants lacked statutory authority to conduct the 1996

inventory. As noted in the preceding section, Plaintiffs have appropriately

abandoned the contention that they are automatically 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 Defendants’ refusal to allow public

participation in the inventory process, in violation of FLPMA § 201.18
under FLPMA § 201, the public had a right under FLPMA 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 inventory.

19We note that BLM representatives attended several meetings with various

state and local officials concerning the 1996 inventory and, although it did not

solicit information, BLM did “welcome any information” pertinent to the

inventory. Letter from G. William Lamb, State Director, BLM, to Mark O.

Walsh, Utah Association of Counties 2 (Sept. 18, 1996). 

20Whether 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 participation. See Hackford v. Babbitt,

14 F.3d 1457, 1465 (10th Cir. 1994) (noting that in determining standing, court is

“not bound by conclusory allegations, unwarranted inferences, or legal

conclusions”); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)

(noting that in determining standing, court does not “necessarily assume the truth

of legal conclusions merely because they are cast in 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 subject matter jurisdiction,

plaintiff “may not rest merely on ‘unsupported conclusions 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 public participation in the

inventory itself.19 Further, Defendants argue that any injury suffered by Plaintiffs

from the denial of such participation is conjectural and hypothetical since it is not

yet known how Defendants will utilize the report based 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 to determine whether

Plaintiffs have a right to participate in the inventory process.20 If we conclude
merits of the plaintiff’s claim, courts have been inconsistent 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, 1997) (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 suffered an injury-in-fact for

standing purposes. Cf. id. at *10-*11 (disposing of reinstatement claim on

standing grounds after rejecting plaintiffs’ assertion 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 did 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 Congressionally excluded

product”); see also Marshall County Health Care Auth. v. Shalala, 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) stage.”). 

-28-

that Plaintiffs do not have such a right, then Plaintiffs’ 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 claim has no foundation in law, he

has no legally protected interest and thus no standing to sue.”); Arjay Assocs., Inc.

v. Bush, 891 F.2d 894, 898 (Fed. Cir. 1989) (“We hold that appellants lack

standing because the injury they assert is to a nonexistent right ....”). If, however,

we conclude that FLPMA does provide for public participation during the

inventory process, we must then decide whether denial of this right constitutes an
-29-

injury for standing purposes and, further, whether the denial of public

participation at this point constitutes a final agency 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 continuing 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 changes in conditions

and to identify new and emerging resource and other values. The

preparation and maintenance of such inventory or the identification

of such areas shall not, of itself, change or prevent change of the

management or use of public lands.

... [T]he Secretary shall ... provide State and local governments

with data from the inventory for the purpose of planning and

regulating the uses of non-Federal lands in proximity 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 participation 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 of a clearly expressed

legislative intent to the contrary, that language must ordinarily be regarded as

conclusive.” Id. (internal quotations omitted).
21The relevant public participation provisions of FLPMA § 202 are as

follows: 

(a) Development, maintenance, and revision by

Secretary—The Secretary shall, with public involvement ... develop,

maintain, and, when appropriate, revise land use plans ....

....

(c) Criteria for development and revision—In the

development and revision of land use plans, the Secretary 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 implementing this directive,

the Secretary ... shall provide for meaningful public involvement of

State and local government officials ... in the development of land

use programs, land use regulations, and land use decisions for public

lands, including early public notice of proposed decisions 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 where appropriate, to

give Federal, State, and local governments and the public, adequate

notice and opportunity to comment upon and participate in the

formulation of plans and programs relating to the management of the

public lands.

-30-

FLPMA § 201 is entitled “Continuing inventory and identification of public

lands; preparation and maintenance.” 43 U.S.C. § 1711. Section 201 is the first

section in a subchapter entitled “Land Use Planning and Land Acquisition and

Disposition.” FLPMA § 202, entitled “Land use plans,” 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.21
43 U.S.C. § 1712(a), (c)(9), (f). The regulations to FLPMA § 202 set forth

specific requirements for public participation during 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 no 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 inclusion 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 in

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 distant points of a lengthy and complex

enactment.”).

Plaintiffs argue § 201 must be read in conjunction with § 202 and that

public participation must therefore be provided throughout the land use planning

process, which they assert includes the inventory. Although § 201 and § 202 are

certainly related in that the provisions of both sections are utilized in the overall

land use planning process, the sections have different purposes and different

requirements. Section 201 provides for a continuing inventory and identification

of the public lands, whereas § 202 addresses the development, maintenance, and

revision of land use plans. The public participation requirements of § 202 apply
22Defendants have not argued on appeal nor did they argue before the

district court that they were conducting the 1996 inventory under the authority of

FLPMA § 202. We note, however, that various documents in the record contain

oblique references by Defendants to § 202 in the context 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 land use plan for these lands is

a “possible next step[],” but have noted this is only 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 they may formulate, through a

legislative NEPA process, new wilderness recommendations to Congress. See id.

Defendants have consistently acknowledged that if they do in fact amend the land

use plan in the future, they will be required to comply with the public

participation requirements of § 202. 

-32-

only when the Secretary is making decisions regarding land use plans, i.e., when

the Secretary is making decisions directly affecting the actual management of the

public lands. Section 202's requirements do not apply when the Secretary is

merely conducting an inventory of public lands under 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 language of § 201 belies this

suggestion: the Secretary is legislatively directed 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). 
23These eight factors are: (1) land areas for specific 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 implementation sequences of

planned actions; and (8) intervals and standards for 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 program,” “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 factors23 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 itself, 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 inventory supports Defendants’

contention that neither the inventory nor the report based on the inventory make

any decisions concerning the management or use of the public lands.

Defendants have consistently maintained that once the Secretary reviews

the report based on the 1996 inventory, the Secretary will make the report public

and determine what further action, if any, will be taken. Defendants have further
24Although FLPMA § 202 requires the Secretary to rely on 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 inventory 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, they will be required to comply

with NEPA and FLPMA § 202, thereby affording Plaintiffs full public

participation rights.24 If Defendants amend the plan without allowing Plaintiffs 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 comply 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 fail 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 allegedly made without complying

with NEPA); Trustees for Alaska v. Hodel, 806 F.2d 1378 (9th Cir. 1986)
25Any future injury Plaintiffs may suffer from the submission of the

inventory report directly to Congress is speculative 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 will 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 based 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).

26Plaintiffs also apparently argue they have been injured 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 provision of FLPMA Plaintiffs

base their claim. In their Complaint, Plaintiffs reference both FLPMA § 309 and

FLPMA § 310. Neither of these provisions provide a basis for their claim.

Section 309 provides that 

the Secretary, by regulation, shall establish procedures, including

public hearings where appropriate, to give the Federal, State, and

local governments and the public adequate notice and an opportunity

to comment upon the formulation of standards and criteria for, and to

-35-

(enjoining government from submitting report to Congress because government

failed to comply with public participation requirements 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 level, Congress will certainly not

be bound by the report, as it has complete discretion in designating public lands

as wilderness.25

This court therefore concludes FLPMA § 201 does not require public

participation during the inventory process. Plaintiffs’ 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 challenge
participate in, the preparation and execution of plans 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 management 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 rule-making authority to

carry out the purposes of FLPMA and requires the Secretary 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 generally allege they were injured

because they were denied an opportunity to comment on the 1996 Procedures

under the APA, their argument is unpersuasive. Plaintiffs have not identified a

concrete injury resulting from the alleged procedural 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 standing.” Animal Legal Defense

Fund, Inc. v. Glickman, 130 F.3d 464, 471 (D.C. Cir. 1997) (holding allegation

that Secretary failed to comply with notice and comment provisions of APA was

insufficient to afford standing because plaintiff “failed to make the case that it

has suffered a concrete injury as distinguished from the abstract procedural right

to submit comments”).

Moreover, it is difficult to understand how Plaintiffs could be injured from

the allegedly improper promulgation of the procedures used to conduct the

inventory when they cannot identify a concrete injury from the inventory itself.

27H.R. 1500 and H.R. 1745 were introduced before the 104th Congress in

1995. H.R. 1500 would have designated approximately 5.7 million acres of

federal lands in Utah as wilderness, whereas H.R. 1745 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 bills27 as a result of a November 1993
approximately 2.1 million acres as wilderness. Neither bill passed. See supra

note 4 (discussing wilderness bills). The 1996 inventory includes all public lands

identified in the H.R. 1500 and H.R. 1745 wilderness bills. See 1996 Procedures,

supra. 

28Plaintiffs quote the following language from the Secretary’s letter: “I

want you to make sure that any BLM management decisions affecting potential

wilderness on BLM lands in Utah, whether within formally designated WSA’s or

not, are given your careful attention.” 

29The IMP was initially adopted to guide the management of the public

lands subject to the FLPMA § 603 process. See supra Part 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 Director.28 In claiming that

Defendants are imposing a “de facto wilderness management standard,” Plaintiffs

argue that Defendants are essentially imposing an IMP standard, which is used to

ensure the continuing suitability of public lands for 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 standard.29 According to

Plaintiffs, application of the IMP standard precludes many uses on federal lands,

which in turn limits access to and uses of state trust lands surrounded by the

particular federal lands (“inheld” state trust lands).

Plaintiffs assert that Defendants’ imposition of a wilderness management

standard on non-WSA public lands violates FLPMA. Plaintiffs 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. Further, in amending the land
-38-

use plan, Defendants must comply with the public participation requirements of

FLPMA § 202. Plaintiffs allege they have been injured by the imposition of the

wilderness management standard because it impairs their ability to lease inheld

state trust lands for grazing and mineral development. 

To satisfy the traceability requirement of constitutional standing, Plaintiffs

must show there is a “causal connection between the injury and the conduct

complained of--the injury has to be ‘fairly ... trace[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-in-fact with a causal nexus to the

1996 inventory, this alone is insufficient to establish Article III standing. 

Plaintiffs must also show “there is at least a ‘substantial 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 omitted)).

Significantly, Plaintiffs do not allege that Defendants’ initial imposition of

the de facto wilderness management standard was in any way related to

Defendants’ decision to conduct the inventory. Rather, Plaintiffs allege the

standard was imposed in response to a letter written by the Secretary in 1993,

three years before the Secretary undertook the inventory. Therefore, Plaintiffs’
30Whether Plaintiffs have standing to directly challenge Defendants’ alleged

imposition of a de facto wilderness management standard is discussed in infra

Part II.C. At this juncture, we merely conclude that Plaintiffs do not have

standing to challenge the 1996 inventory based on their alleged injury from

imposition of the standard. 

31As the basis for this conclusion, Plaintiffs first assert that under the 1996

Procedures, the public lands included in the inventory “will be considered

extensions of existing WSAs.” Plaintiffs then assert that because WSAs are

managed under the IMP, “[i]t follows that Defendants will manage these units

under the IMP standards.”

To support their assertion that the public lands included in the 1996

inventory “will be considered extensions of existing WSAs,” Plaintiffs apparently

rely on the following statement in the 1996 Procedures: “When review units are

contiguous to WSAs, they should be considered an extension of the WSA so that

no additional evaluation of outstanding opportunities is required.” 1996

Procedures, supra. Read in context, this statement provides that review 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 characteristics. See id.

Contrary to Plaintiffs’ suggestion, the Procedures do not provide that these review

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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 imposition of a de facto wilderness

management standard.30 

While not premising their challenge to the 1996 inventory on the initial

imposition of a de facto wilderness management standard, Plaintiffs do make a

failed attempt to link the two prospectively. Specifically, Plaintiffs allege that

Defendants will formalize the wilderness management standard as a result of the

inventory.31 Plaintiffs also allege that, “[i]n light of Defendants’ past actions,”
units will automatically be managed under the IMP simply because they are

considered extensions of existing WSAs for this one specific evaluation purpose. 

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Defendants will fail to provide for notice and comment when they formally adopt

the management standard.

 To satisfy the injury-in-fact requirement of constitutional standing, the

burden is on Plaintiffs to show they are “immediately in danger of sustaining

some direct injury” as a result of the 1996 inventory and that the threat of injury

is “real and immediate, not conjectural or hypothetical.” City of Los Angeles v.

Lyons, 461 U.S. 95, 102 (1983) (internal quotations omitted). Plaintiffs’ bald

allegation that Defendants will at some time formally 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 undetermined 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 speculative for Article III purposes--

that the injury is ‘certainly impending’” (internal quotation marks omitted)).
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If Defendants do in fact amend the land use plan to manage the lands

included in the inventory as WSAs under the IMP, and do so without the public

participation required by FLPMA § 202, Plaintiffs may challenge the plan

amendment at that time. See supra Part II.B.2. If Plaintiffs are then entitled to

relief, the appropriate remedy would be to enjoin the misuse of the inventory, not

its preparation. At this point, however, Plaintiffs 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 of “roadlessness” than the WIH,

which was adopted for the original FLPMA § 603 wilderness review process. A

determination of “roadlessness” is a prerequisite to a finding of wilderness. See

FLPMA § 603, 43 U.S.C. § 1782(a). Plaintiffs specifically claim the 1996

Procedures exclude from consideration the following, all of which were

considered under the WIH: “(a) roads that are regularly 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
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inventory will be considered “roadless” than under the WIH and, consequently,

more lands will be considered suitable for wilderness 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 “interests are injured by

Defendants’ failure to explain the significant changes in ... interpretation.” As we

have already discussed, a generalized grievance that Defendants are acting in

violation of the law is not sufficient to afford standing. See supra Part II.B.1. To

establish standing, Plaintiffs must identify a concrete 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 particular lands included in the 1996

inventory are roadless. Plaintiffs argue that if the 1996 Procedures had used the

same definition of “roadlessness” as the WIH, the requirement to consider public

support for the use of a road would have allowed them 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 participate in the inventory process. 
-43-

See supra Part II.B.2. Again, if Defendants later rely on the results of the

inventory in amending the land use plan for the lands included in the inventory,

Defendants will be required under FLPMA § 202 to provide the public with an

opportunity to comment. 

Plaintiffs also claim that Defendants changed their road maintenance

policies as a result of their decision to conduct the 1996 inventory. In support of

their motion to preliminarily enjoin Defendants from completing the inventory,

Plaintiffs submitted several affidavits from various county officials discussing

changes to Defendants’ road maintenance policies since the inventory was

commenced. Specifically, the affiants testified that Defendants revoked a

cooperative road agreement, required counties to seek permission to maintain

their own roads, and initiated trespass actions against certain counties for routine

road maintenance activities. To link the alleged change in road maintenance

policies to Defendants’ decision to conduct the inventory, Plaintiffs primarily rely

on the temporal proximity of Defendants’ actions to the inventory. Plaintiffs also

rely on what they term “admissions” by BLM officials concerning the relationship

between the alleged change in policy and Defendants’ decision to undertake the

inventory. 

In response, Defendants argue that neither their decision to conduct the

inventory nor the 1996 Procedures “establish, change, or even address, any
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policies regarding road maintenance in Utah.” Defendants particularly note the

trespass actions against the counties have not been limited 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 alleged changes to road

maintenance policies can be traced to Defendants’ decision to conduct the

inventory. Regardless, enjoining the inventory is not substantially likely to

redress Plaintiffs’ injuries. Assuming that Defendants 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 the alleged changes in road

policies, such as a judgment requiring Defendants to adhere to a specific

agreement, a declaration that Defendants improperly required county officials to

seek permission to maintain a particular road, or an 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 roads 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 remedy
32To 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 infra Part II.C.

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Plaintiffs’ claimed injuries resulting from the alleged 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 federal land for private land

because voiding the exchange was not likely to result 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 challenge exchange of federally

owned coal for conservation easement because voiding 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 Defendants’ failure to prepare

an EIS in violation of NEPA. NEPA requires all federal agencies to “include in

every recommendation or report on proposals for legislation and other major

Federal actions significantly affecting the quality of the human environment, a

detailed statement by the responsible official” addressing certain environmental

considerations. NEPA § 102, 42 U.S.C. § 4332(2)(C). The term “major federal
33This court need not accept Plaintiffs’ allegation that 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

supra note 20 (discussing appropriateness of resolving legal questions to

determine standing).

To the extent Plaintiffs allege that imposition of a de facto wilderness

management standard constitutes a “major federal action” requiring preparation of

an EIS, their claim is encompassed in the cause of action directly challenging

imposition of the standard. See infra Part II.C.

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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. § 1601.0-6. If a federal agency is

required to prepare an EIS and fails to do so, an action 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 federal action significantly

affecting the quality of the human environment.” NEPA § 102, 42 U.S.C. §

4332(2)(C). FLPMA § 201 expressly provides that an inventory “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 discussed, the 1996 inventory does

not constitute an amendment to or revision of a land use plan. See supra Part

II.B.2. The inventory also cannot be characterized as a “proposal for legislation.” 

As previously stated, if Defendants later utilize the report based on the inventory

in recommending wilderness legislation or if they decide 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 EIS. See Fund for Animals,

Inc. v. Thomas, 127 F.3d 80, 84 (D.C. Cir. 1997) (holding national 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 “acquisition of negative easement

which by its terms prohibits any change in the status quo does not amount to [a]

‘major Federal action[]’” (second alteration in original)). 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 interest and thus no standing to

sue.”); Arjay, 891 F.2d at 898 (“We hold that appellants lack standing because the

injury they assert is to a nonexistent right ....”).

6. Summary
34Plaintiffs moved for a preliminary injunction only with respect to the

1996 inventory. Plaintiffs did not move for a preliminary injunction to enjoin

Defendants from imposing the de facto management standard. In arguing against

Plaintiffs’ motion to enjoin the inventory, Defendants did not directly challenge

Plaintiffs’ standing to bring their de facto management claim. Further, in their

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Plaintiffs have failed to identify a concrete, actual 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 executive branch. In light of our

conclusion that Plaintiffs lack constitutional standing, we need not address

whether prudential limitations or the statutory requirements for judicial review

under the APA would also preclude review of Plaintiffs’ 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 the district court to dismiss

those causes of action related directly to the inventory, i.e., Plaintiffs’ first,

second, third, fourth, fifth, seventh, and eighth causes of action. 

C. Standing to Challenge De Facto Wilderness Management

We next consider whether Plaintiffs have standing to directly challenge

Defendants’ alleged imposition of a de facto wilderness management standard on

non-WSA federal lands, in violation of FLPMA. In determining whether

Plaintiffs have standing to bring this claim, their sixth cause of action, we apply

the motion to dismiss standard.34
briefs on appeal, both parties focused on the inventory and did not specifically

address whether imposition of a de facto management standard could be brought

as an independent cause of action. In light of these facts, we apply the more

lenient motion to dismiss standard in determining whether Plaintiffs have

standing to bring their de facto management claim.

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As previously discussed, Plaintiffs allege that Defendants began imposing

the de facto management standard in response to a letter written by the Secretary

in 1993, three years before the Secretary announced his decision to conduct the

1996 inventory. See supra Part II.B.3. Plaintiffs’ claim that Defendants are

currently imposing such a standard is therefore not directly related to Defendants’

decision to conduct the 1996 inventory. Accordingly, Plaintiffs’ de facto

management cause of action is not foreclosed by our decision that Plaintiffs lack

standing to challenge the inventory. To the extent Plaintiffs base their standing to

challenge the 1996 inventory on this cause of action, however, we have

considered and rejected their argument.

 Plaintiffs essentially argue that imposition of the de facto wilderness

management standard amounts to an “informal” amendment to the land use plan. 

As previously discussed, FLPMA § 202, which governs land use plans, provides

for public participation throughout the land use planning process, including

amendments to land use plans. See supra Part II.B.2. Plaintiffs assert they were

denied an opportunity to comment on the amendment and allege they have been
35See supra note 28 (quoting statement from Secretary).

36There are three separately named Plaintiffs in this suit: the State of Utah,

the Utah School and Institutional Trust Lands Administration, and the Utah

Association of Counties. This court concludes the Trust Lands Administration,

which is most directly injured by imposition of a de facto wilderness management

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injured because imposition of the standard impairs their ability to lease their state

trust lands.

In support of their claim that Defendants are currently imposing a de facto

wilderness management standard, Plaintiffs reference only a nebulous statement

made by the Secretary in 1993.35 Importantly, Plaintiffs allege no specific

interferences with their state trust lands resulting from such management. Before

the district court, Plaintiffs submitted an affidavit from the Director of the State

Trust Lands Administration to support their motion for a preliminary injunction to

enjoin the inventory. This affidavit, however, does not support Plaintiffs’

allegation that Defendants are currently imposing a de facto wilderness

management standard, but rather discusses generally the effects on inheld state

trust lands when surrounding federal lands are managed as WSAs under the IMP

or are designated as wilderness. 

Nevertheless, because general allegations of injury based on a legally

cognizable right suffice at this stage, and because we must accept as true

Plaintiffs’ factual allegations, we conclude that Plaintiffs do have standing to

bring their de facto management claim.36 Courts have recognized that an
standard, has standing to pursue the de facto wilderness 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 other two Plaintiffs would also

have standing to bring the claim. See Watt v. Energy Action Educ. Found., 454

U.S. 151, 160 (1981). 

37The redressability and immediacy requirements are relaxed 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 plaintiff need not

establish with certainty that adherence to the procedures 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 as the procedures in question

are designed to protect some threatened concrete interest 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 procedural rights under FLPMA and

have alleged they are harmed by Defendants’ imposition of the de facto

wilderness management standard. Plaintiffs have requested that Defendants be

enjoined from imposing the de facto standard at least until they comply with

FLPMA by formally amending the land use plan and providing for notice and

comment. Thus, Plaintiffs’ injuries are redressable by a favorable decision.37

Plaintiffs have also satisfied the standing requirements of the APA: 

Defendants’ alleged imposition of the de facto wilderness 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 alleged Secretary failed to
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comply with NEPA when designating critical habitat). We therefore conclude

Plaintiffs have standing to pursue their de facto management 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 FLPMA.

We emphasize, however, that our decision is limited to the threshold issue

of whether Plaintiffs’ claim can survive a motion to dismiss. This court expresses

no view on whether Plaintiffs’ claim could survive a motion for summary

judgment or whether their claim should succeed on the merits. We also note that

if Defendants move for a summary judgment, Plaintiffs “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 claim. Defenders of Wildlife, 504

U.S. at 561 (quoting Fed. R. Civ. P. 56(e)).

III. CONCLUSION

This court concludes Plaintiffs do not have standing to challenge the 1996

inventory. Due to our resolution of the standing issue, we need not address

Defendants’ ripeness argument nor need we address Defendants’ argument that

the district court abused its discretion in granting Plaintiffs’ motion for a

preliminary injunction.
38Plaintiffs’ unopposed motion to supplement the record on appeal is hereby

granted.

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Because Plaintiffs lack standing to challenge the 1996 inventory, we

VACATE the preliminary injunction entered by the district court 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 Defendants are currently imposing

a de facto wilderness management standard on non-WSA public lands, in

violation of FLPMA.38