United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 21, 2005 Decided January 17, 2006

No. 05-5032

THE WILDERNESS SOCIETY,

APPELLANT

v.

GALE A. NORTON,

SECRETARY OF THE UNITED STATES 

DEPARTMENT OF THE INTERIOR, AND

FRAN MAINELLA, DIRECTOR NATIONAL PARK SERVICE,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 03cv00064)

Craig S. Coleman argued the cause for appellant. With him

on the briefs were Brian B. O’Neill, Richard A. Duncan,

Jonathan W. Dettmann, and Leslie L. Jones.

Lisa E. Jones, Attorney, U.S. Department of Justice, argued

the cause for appellees. On the brief were David C. Shilton and

Anna T. Katselas, Attorneys.

Before: GARLAND, Circuit Judge, and EDWARDS and

SILBERMAN, Senior Circuit Judges.
2

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: The Wilderness Society

(“TWS” or the “Society”) filed suit in the United States District

Court for the District of Columbia. The complaint alleges that

the National Park Service (“NPS” or the “Park Service”) has

chronically failed to undertake various legal obligations with

respect to the identification and management of “wilderness” in

the National Park System. TWS seeks judicial redress to

compel the agency to take actions that allegedly have been

unlawfully withheld and unreasonably delayed. On January 10,

2005, the District Court granted relief with respect to five of the

Society’s claims, but dismissed the remaining 39 counts alleged

in TWS’ complaint. TWS appealed the dismissals. The

Government did not file a cross-appeal. 

At issue here are TWS’ claims that NPS has failed to

comply with certain statutory mandates and deadlines and also

failed to adhere to certain management policies. We dismiss the

majority of TWS’ claims for want of Article III standing. And

we deny TWS’ non-statutory claims resting on NPS’ alleged

failure to develop wilderness management plans, because they

are predicated on unenforceable agency statements of policy. 

I. BACKGROUND

On January 15, 2003, TWS filed suit against Gale Norton

in her official capacity as Secretary of the Interior and Fran

Mainella in her official capacity as Director of NPS.

Specifically, TWS “allege[d] a widespread disregard by NPS of

its statutory and regulatory duties to take specific actions to

review and protect wilderness-quality lands in the National Park

System, in violation of the Wilderness Act, 16 U.S.C. §§ 1131-

36, the National Park Service Organic Act, 16 U.S.C. §§ 1-18f3, National Park Service Policies and Directives, and the

[Administrative Procedure Act].” Wilderness Soc’y v. Norton,
3

CA No. 03-64, 2005 U.S. Dist. LEXIS 18734, at *2 (D.D.C. Jan.

10, 2005) (emphases omitted). 

The facts surrounding TWS’ allegations are discussed at

length in the District Court’s Memorandum Opinion, so we will

not repeat the full statement of facts here. Suffice it to say that

“The Wilderness Society . . . filed a 94-page, 44-count

complaint against the [NPS] . . . for alleged failures to conduct

wilderness assessments, forward wilderness recommendations

to the President, prepare wilderness management plans, revisit

legally-insufficient wilderness assessments, and otherwise to

take required measures to protect wilderness resources in this

country.” Id. at *1. In alleging that NPS has failed to prepare

wilderness management plans, TWS relies on internal agency

policies found in NATIONAL PARK SERVICE, DEPARTMENT OF

INTERIOR, NPS D1416, MANAGEMENT POLICIES 2001 (Dec.

2000) (“MANAGEMENT POLICIES” or “POLICIES”), available at

http://www.nps.gov/refdesk/mp/. See also Director’s Order #41

and NPS Reference Manual #41, available at

http://www.nps.gov/applications/npspolicy/DOrders.cfm. TWS’

suit is based upon § 706(1) of the Administrative Procedure Act

(“APA”), which permits a court to “compel agency action

unlawfully withheld or unreasonably delayed,” 5 U.S.C.

§ 706(1) (2000). Wilderness Soc’y, 2005 U.S. Dist. LEXIS

18734, at *2.

On July 30, 2003, NPS filed a motion for judgment on the

pleadings, see FED. R. CIV. P. 12(c), arguing, inter alia, that the

Society lacks Article III standing; that TWS’ claims regarding

certain statutory deadlines are time-barred; and that the

MANAGEMENT POLICIES cited by TWS embodies nonbinding

declarations of policy issued solely to guide NPS managers and

staff in their duties. On January 10, 2005, the District Court

granted the Government’s motion for judgment on the pleadings

as to all but five counts. Wilderness Soc’y, 2005 U.S. Dist.

LEXIS 18734, at *70-71. The District Court dismissed the
4

counts under the Wilderness Act and the specific enabling

statutes as time-barred pursuant to 28 U.S.C. § 2401(a) (2000),

the six-year statute of limitations for civil actions brought

against the United States. Wilderness Soc’y, 2005 U.S. Dist.

LEXIS 18734, at *24-25. The remaining claims were rejected

for want of merit under 5 U.S.C. § 706(1). Id. at *46-47. TWS

filed a timely notice of appeal, challenging the District Court’s

dismissal of its statutory claims and denial of relief on the bulk

of its claims arising under the MANAGEMENT POLICIES. The

Government did not cross-appeal the orders covering the five

claims on which relief was granted to TWS. And at oral

argument before this court, the Government acknowledged that

NPS is presently complying with the District Court’s orders

relating to these five claims and conceded that no review was

properly sought on these matters.

II. ANALYSIS

A. Statute of Limitations

The District Court dismissed TWS’ claims under the

Wilderness Act and the specific enabling statutes as time-barred

under 28 U.S.C. § 2401(a). Section 2401(a) provides that

“every civil action commenced against the United States shall be

barred unless the complaint is filed within six years after the

right of action first accrues.” The District Court ruled that the

Society’s claims based on violations of the Wilderness Act, 16

U.S.C. § 1132(c) (2000), the Big Cypress National Preserve

Addition Act, 16 U.S.C. § 698l (2000), the Glen Canyon

National Recreation Area Enabling Act, 16 U.S.C. § 460dd-8

(2000), and the California Wilderness Act, Title VI, § 602, Pub.

L. No. 103-433, 108 Stat. 4496-97 (1994), were untimely,

because each claim was brought more than six years after NPS

failed to meet its statutory deadline to perform wilderness

reviews or file and complete legal boundary maps. 
5

The Society appeals this ruling on the grounds that the

statute of limitations has not run, because NPS is in continuous

violation of its statutory obligations. TWS also points out that

this court has never applied 28 U.S.C. § 2401(a) in situations

comparable to this case in which a claimant has filed for

mandamus to “compel agency action unlawfully withheld or

unreasonably delayed.” The Government offers no response

and, noticeably, it does not attempt to defend the District Court’s

decision. 

Although we need not reach a final determination on this

issue because we find TWS lacks standing as to its statutory

claims, the Society appears to be right in its contention that the

District Court erred in dismissing the counts under the

Wilderness Act and the specific enabling statutes as time-barred

under 28 U.S.C. § 2401(a). This court has repeatedly refused to

hold that actions seeking relief under 5 U.S.C. § 706(1) to

“compel agency action unlawfully withheld or unreasonably

delayed” are time-barred if initiated more than six years after an

agency fails to meet a statutory deadline. For example, in In re

United Mine Workers of America International Union, 190 F.3d

545 (D.C. Cir. 1999), the petitioner sought a writ of mandamus

to compel a division of the Department of Labor to issue final

regulations. The statute required the Secretary of Labor to

promulgate final regulations, or explain her decision not to

promulgate them, within 90 days of a specified date. Id. at 550.

The suit was brought eight years after the agency failed to meet

its deadline. Id. The court nonetheless rejected the agency’s

contention that the suit was time-barred. The court ruled that,

“[b]ecause the [union] does not complain about what the agency

has done but rather about what the agency has yet to do, we

reject the suggestion that its petition is untimely.” Id. at 549. 

The decision in In re Bluewater Network, 234 F.3d 1305

(D.C. Cir. 2000), is to the same effect. There the court noted

that the statute “command[ed] the Coast Guard to establish
6

compliance standards. There are none.” Id. at 1315. The court

also noted that it was “faced with a clear statutory mandate, a

deadline nine-years ignored, and an agency that has admitted its

continuing recalcitrance.” Id. at 1316. Notwithstanding that the

statutory deadline had been missed by nine years, the court

found the petition was timely. Id. at 1314.

TWS claims that NPS has chronically failed to undertake

various legal obligations with respect to the identification and

management of “wilderness” in the National Park System. The

Society’s complaint alleges continuing violations by the

Government. It “does not complain about what the agency has

done but rather about what the agency has yet to do,” United

Mine Workers, 190 F.3d at 549. Under these circumstances, it

is unlikely that TWS’ complaint would be held by this court to

be time-barred by 28 U.S.C. § 2401(a).

B. TWS’ Standing

We cannot address the merits of TWS’ claims, however,

unless we are assured that the Society has Article III standing.

See Am. Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir.),

merits reviewed, 406 F.3d 689 (D.C. Cir. 2005). TWS may

bring suit in a representational capacity on behalf of its members

if:

(1) at least one of [its] members has standing to sue in his

or her own right, (2) the interests the association seeks to

protect are germane to its purpose, and (3) neither the claim

asserted nor the relief requested requires the participation of

an individual member in the lawsuit. 

Id. On the record here, TWS has failed to satisfy the first

standard with respect to all but its non-statutory claims resting

on NPS’ alleged failure to develop wilderness management

plans.
7

The Court in Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992), explained that 

the irreducible constitutional minimum of standing contains

three elements. First, the plaintiff must have suffered an

injury in fact – an invasion of a legally protected interest

which is (a) concrete and particularized; and (b) actual or

imminent, not conjectural or hypothetical. Second, there

must be a causal connection between the injury and the

conduct complained of – the injury has to 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. Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.

Id. at 560-61 (internal citations, alterations, and quotation marks

omitted). In order to establish standing, TWSmust demonstrate,

as to each of its claims, that at least one member meets the

requirements of Lujan. It has failed to do this with respect to all

but its non-statutory claims resting on NPS’ alleged failure to

develop wilderness management plans. 

The Government argues that the affidavits and declarations

filed by TWS fail to establish injury in fact. The majority, they

argue, offer nothing more than conclusory assertions that NPS’

failure to comply with its wilderness mandates injures the

member because it results in degradation of the wilderness areas

he or she frequents. The remaining declarations, according to

the Government, are insufficiently specific in their pleadings.

The Government argues further that, even assuming injury in

fact, the Society cannot establish that its members’ injuries are

fairly traceable to NPS’ alleged failures to act, or that

compelling NPS to take the actions TWS requests would redress

these injuries. We agree that, as to all but its non-statutory

claims resting on NPS’ alleged failure to develop wilderness
8

management plans, TWS has failed to demonstrate injury in fact

or redressability. 

Harms to aesthetic and recreational enjoyment of parks may

suffice to create injury for Article III purposes. See Sierra Club

v. Morton, 405 U.S. 727, 734 (1972). “But the ‘injury in fact’

test requires more than an injury to a cognizable interest. It

requires that the party seeking review be himself among the

injured.” Id. at 734-35. The declarations submitted by TWS do

not, in most instances, demonstrate particularized and concrete

injuries necessary to establish Article III standing. 

For example, one such declaration states: 

I want the undeveloped land assessed for wilderness

suitability in Chaco Culture National Historical Park to

prevent future uses of the land that would be incompatible

with my enjoyment of the Park and the NPS’ mandate to

preserve lands it manages “unimpaired for the use and

enjoyment of future generations.” Among such potential

impairments could be proposals for power line rights-ofway, transmission towers for communication sites, and new

roads. I will suffer imminent and irreparable harm if the

NPS does not comply with its duty. 

Plaintiff’s Memorandum in Response to Defendants’ Motion for

Judgment on the Pleadings, Exhibit F (“Ex. F”), Buono Decl. 

¶ 6, Wilderness Soc’y v. Norton, CA No. 03-64 (D.D.C. Jan. 10,

2005). Such “‘general averments’ and ‘conclusory allegations’

[are] inadequate.” Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 184 (2000) (internal citation

omitted).

Not all of the declarations submitted by the Society are

infirm in their allegations of concrete and particularized injury.

This does not help TWS, however. Even when injury in fact is

demonstrated and the alleged injuries are fairly traceable to

NPS’ failure to comply with its statutory obligations, TWS has
9

failed to show that it is “likely, as opposed to merely

speculative, that the injur[ies] will be redressed by a favorable

decision.” Lujan, 504 U.S. at 561 (internal citations and

quotation marks omitted). 

The redressability inquiry poses a simple question: “[I]f

plaintiffs secured the relief they sought, . . . would [it] redress

their injury”? Mountain States Legal Found. v. Glickman, 92

F.3d 1228, 1233 (D.C. Cir. 1996). TWS seeks three types of

relief with respect to which it cannot show redressability. First,

in relation to two parks, Glen Canyon National Recreation Area

and Lake Mead National Recreation Area, TWS asks the court

to order NPS to forward its completed wilderness

recommendations to the President. Second, the Society asks for

an order compelling the Park Service to complete a legal

description and wilderness boundary map of designated

wilderness in Death Valley National Park. Third, TWS seeks an

order to compel the agency to complete wilderness suitability

assessments for 11 parks. Because TWS is required to

“demonstrate standing separately for each form of relief

sought,” Friends of the Earth, 528 U.S. at 185, we consider its

standing in relation to each of these requests in turn, focusing

specifically on the question of redressability. And, as to each

claim, we hold that appellant lacks standing for want of

redressability. 

1. NPS’ Alleged Failure to Forward Reports to the

President

TWS seeks an order requiring NPS to forward to the

President the agency’s completed wilderness recommendations

for Glen Canyon National Recreation Area and Lake Mead

National Recreation Area. There is no good reason to believe

that such an order will redress TWS’ injuries. No legal

consequences flow from the recommendations. Even if this

court were to order NPS to forward its recommendations to the

President, it would still be up to Congress to decide whether to
10

designate the cited lands as wilderness. See 16 U.S.C. § 1132(c)

(Wilderness Act); 16 U.S.C. § 460dd-8 (Glen Canyon National

Recreation Area Reporting Provision).

Congress has no obligation to consider the President’s

recommendations, should he offer any, let alone act upon them.

And no order from this court requiring NPS to submit

recommendations to the President in the hope that he will in turn

forward them to Congress will change this situation. See

Guerrero v. Clinton, 157 F.3d 1190, 1191 (9th Cir. 1998)

(holding where “reports [to Congress] themselves trigger no

legal consequences,” any injury allegedly incurred by the

absence of reporting “is . . . not redressable”). In short, the

judicial order that TWS requests will not afford it the redress it

seeks.

2. NPS’ Alleged Failure to Complete a Legal

Description and Boundary Map for Death Valley

National Park

TWS similarly cannot establish redressability with respect

to its request for an order compelling NPS to complete a legal

description and boundary map of designated wilderness in Death

Valley National Park. In other words, the member injuries cited

by TWS will not be redressed by the relief requested. 

 TWS submitted the declaration of Ms. Wold, which asserts

that she is a member of TWS and that she spends significant

time in Death Valley National Park. Ex. F, Wold Decl. ¶¶ 1, 4.

The declaration states further that, in December 2002, Ms. Wold

and her family had planned five park adventures for the coming

year. Id. ¶ 4. The declaration identifies the particular parts of

the park that Ms. Wold has frequented in the past, as well as the

areas that she plans to frequent over the next year. Id. Ms.

Wold then asserts the following purported injuries:

I want the Park [Service] to fulfill its obligations to

complete final boundary maps and wilderness legal
11

descriptions for Death Valley National Park in order to

prevent uses of the land that are incompatible with my

enjoyment of the Park. Off-road vehicle (ORV) ingress is

a constant threat to the Park. A Toyota 4WD vehicle was

abandoned in Butte Valley, located in the Park, the last time

we were hiking in the area. Abandoned vehicles and

vehicle parts have violated the beauty of park areas like

Surprise Canyon [an area of Death Valley she has

frequented], and its delicate riparian area.

. . . .

NPS’s failure to comply with its wilderness responsibilities

harms my ability to use and enjoy Death Valley National

Park as wilderness because most citizens do not realize that

95% of the park was designated as wilderness on October

31, 1994. Without maps, to most people with 4WD

vehicles, a dirt tract is a road to be traveled – and travel it

they will.

Id. ¶¶ 7, 9. 

It simply defies reason to think that a court order

compelling NPS to issue final boundary maps and legal

descriptions of Death Valley National Park will reduce off-road

vehicle abuses of the wilderness. Indeed, 95% of the park

already has been designated “wilderness,” so the identification

of protected areas is hardly an issue of any moment. There is no

reason to believe (and TWS cites none) that maps and

descriptions of the park will curb off-road vehicle abuses. TWS

has thus failed to show that it is “likely, as opposed to merely

speculative,” that the injuries cited by Ms. Wold “will be

redressed by a favorable decision” on this issue. Lujan, 504

U.S. at 561 (internal citations and quotation marks omitted).
12

3. NPS’ Alleged Failure to Review Lands for

Wilderness Suitability

TWS also seeks a court order compelling NPS to review

lands for wilderness suitability pursuant to 16 U.S.C. § 1132(c)

in the Wilderness Act. Section 1132(c) states: 

Within ten years after September 3, 1964 the Secretary of

the Interior shall review every roadless area of five

thousand contiguous acres or more in the national parks,

monuments and other units of the national park system and

every such area of, and every roadless island within the

national wildlife refuges and game ranges, under his

jurisdiction on September 3, 1964 and shall report to the

President his recommendation as to the suitability or

nonsuitability of each such area or island for preservation

as wilderness. The President shall advise the President of

the Senate and the Speaker of the House of Representatives

of his recommendation with respect to the designation as

wilderness of each such area or island on which review has

been completed, together with a map thereof and a

definition of its boundaries. Such advice shall be given with

respect to not less than one-third of the areas and islands to

be reviewed under this subsection within three years after

September 3, 1964, not less than two-thirds within seven

years of September 3, 1964 and the remainder within ten

years of September 3, 1964. A recommendation of the

President for designation as wilderness shall become

effective only if so provided by an Act of Congress.

Nothing contained herein shall, by implication or otherwise,

be construed to lessen the present statutory authority of the

Secretary of the Interior with respect to the maintenance of

roadless areas within units of the national park system.

16 U.S.C. § 1132(c). TWS points out that special protections

are afforded “wilderness” areas, see 16 U.S.C. § 1133, and that

these protections would redress the Society’s injuries. The
13

problem, however, is that it is clear from 16 U.S.C. § 1132(c)

that only Congress can designate lands as wilderness. 

Unsurprisingly, TWS argues that the likelihood of an area

attaining “wilderness” designation is increased if NPS or the

Secretary of Interior submit a suitability recommendation to the

President, who in turn may then submit a recommendation to

Congress. The analysis is too attenuated, however. As noted

above, an order from this court requiring NPS to submit

recommendations to the President in the hope that he will in turn

forward them to Congress does not make it “likely, as opposed

to merely speculative,” that the injuries cited by TWS “will be

redressed by a favorable decision.” Lujan, 504 U.S. at 561

(internal citations and quotation marks omitted).

TWS fares no better with reference to the individual park

enabling acts or the MANAGEMENT POLICIES itself. NPS has no

final authority under these acts to designate an area as

wilderness. See, e.g., Big Cypress National Preserve Addition

Act, 16 U.S.C. § 698l. An order from this court cannot make

Congress designate an area as wilderness, so the redress that

TWS seeks cannot be found with the judiciary. A suitability

assessment undertaken pursuant to the MANAGEMENT POLICIES

similarly does not create a designation as wilderness.

TWS responds that, under the agency’s POLICIES, NPS has

committed itself to managing areas as if they are wilderness

once it commences to review lands for wilderness suitability.

TWS points us to § 6.3.1 of the MANAGEMENT POLICIES, which

states, in part, that “[NPS] will take no action that would

diminish the wilderness suitability of an area possessing

wilderness characteristics until the legislative process of

wilderness designation has been completed.” MANAGEMENT

POLICIES, § 6.3.1, supra, at 65 (emphasis added). We do not

view this policy statement as a commitment by NPS to manage

areas as if they are wilderness once the agency commences
14

review of lands for wilderness suitability. And there is certainly

no statutory or case law support for this contention. 

More importantly, even under the policy statement cited by

TWS, it is clear that NPS has wide discretion to decide how to

proceed to “take no action that would diminish the wilderness

suitability of an area possessing wilderness characteristics.” Id.

TWS has not demonstrated that an order from this court

compelling NPS to review lands for wilderness suitability would

change NPS’ management of the land in ways that would

redress the injuries its members allege. For example, TWS has

not shown that various types of motorized vehicles which

allegedly degrade the wilderness that its members use would be

prohibited by NPS so as not to diminish wilderness suitability.

The point is that the existence of various nonconforming uses,

such as logging, farming, mining, and even utility lines, in some

situations, on lands possessing wilderness characteristics does

not per se preclude a recommendation from the Park Service

that the area is wilderness suitable and should be designated as

wilderness. See MANAGEMENT POLICIES, § 6.2.1.2, supra, at 64.

 In short, TWS has not shown that NPS has committed itself

to managing areas as if they are wilderness once it commences

a review of lands for wilderness suitability. Had the Wilderness

Act provided that NPS must manage wilderness-suitable areas

as if they were designated wilderness, i.e., conforming to the

prohibitions and protections of the Wilderness Act, then TWS’

alleged injuries might have been redressable. Nothing in the

statute, however – indeed, nothing in the MANAGEMENT

POLICIES – requires this.

Put differently, TWS lacks standing because it has not

presented a situation comparable to those covered by

Telecommunications Research & Action Center v. FCC, 750

F.2d 70 (D.C. Cir. 1984) (“TRAC”). In a paradigmatic TRAC

case, a petitioner seeks to compel agency action that the

petitioner claims is legally required and that directly affects the
15

party before the court. When the agency then acts pursuant to

a TRAC order, the petitioner will either secure the redress sought

or have a final order on the merits from the agency that will be

subject to judicial review. This case would be covered by TRAC

if, hypothetically, TWS’ claim arose because the agency had

failed to comply with a statutory provision under the Wilderness

Act requiring NPS to make a determination on the merits of a

concrete wilderness proposal within a precise time frame and a

positive determination would redress the particularized injuries

of TWS’ members. We have no such situation here. 

C. The Non-Statutory Claims Relating to NPS’ Alleged

Failure to Promulgate Management Plans 

Finally, TWS requests this court to order the agency to

provide public notice and complete wilderness management

plans in accordance with § 6.3.4.2 of the MANAGEMENT

POLICIES. In advancing this claim, TWS focuses on four parks

that have been designated as wilderness by Congress, three that

are in various stages of the designation process, and one that is

partially designated and partially in the process of designation.

The POLICIES provides, in pertinent part: 

The superintendent of each park containing wilderness

resources will develop and maintain a wilderness

management plan or equivalent planning document to guide

the preservation, management, and use of these resources.

The wilderness management plan will identify desired

future conditions, as well as establish indicators, standards,

conditions, and thresholds beyond which management

actions will be taken to reduce human impacts to wilderness

resources.

. . . Wilderness management plans will be supported by

appropriate documentation of compliance with NEPA and

NHPA. The plan will be developed with public

involvement, and will contain specific, measurable
16

management objectives that address the preservation and

management of natural and cultural resources within

wilderness as appropriate to achieve the purposes of the

Wilderness Act and other legislative requirements.

MANAGEMENT POLICIES, § 6.3.4.2, supra, at 66; see id. § 6.3.1,

supra, at 65 (“For the purposes of applying these policies, the

term ‘wilderness’ will include the categories of suitable, study,

proposed, recommended, and designated wilderness.”); accord

NPS Reference Manual #41, supra, at 32.

TWS’ request for an order compelling NPS to create

management plans, unlike its other claims, does not fail for want

of standing. TWS’ member affidavits covering the cited parks

are, for the most part, sufficient to establish injury in fact. These

affidavits aver that the members’ use and enjoyment of the parks

in question have been impaired by the degradation of these

lands. See, e.g., Ex. F., Wold Decl. ¶¶ 7, 9; Ex. F., McNulty

Decl. ¶ 6. Moreover, the injuries cited are fairly traceable to

NPS. That is, insofar as it is reasonable to assume that enforced

regulations would affect how the parks are used and maintained,

the agency’s alleged failures to regulate and manage the

disputed land areas through wilderness management plans are

the causes of the alleged degradation of these lands. See

Mountain States Legal Found., 92 F.3d at 1234-35 (allegation

that government’s choice among several alternatives for timber

harvesting in national forest resulted in under-regulation and

thereby created an increased risk of catastrophic wildfire was

found not speculative). And it is not unreasonable to assume

that a court order compelling NPS to create viable management

plans would redress many of the injuries allegedly suffered by

TWS members. 

We therefore conclude that TWS has Article III standing to

pursue claims resting on the agency’s alleged failure to comply

with § 6.3.4.2 of the MANAGEMENT POLICIES. It does not matter

whether, in the end, TWS’ claims lack merit. A defect in the
17

merits of a party’s claim is not the basis upon which to

determine standing. And “no court in the modern era has treated

a garden-variety substantive defect in [a party’s] claim as

defeating redressability.” Mountain States Legal Found., 92

F.3d at 1234. 

Although we find that TWS has standing to pursue its

challenge to NPS’ failure to develop management plans, we hold

that these claims fail on the merits. The only ground offered by

TWS to support its claim that NPS is legally obliged to provide

management plans is § 6.3.4.2 of the MANAGEMENT POLICIES.

The Government contends that the POLICIES does not embody

rules that are enforceable against the agency; rather, according

to the Government, the POLICIES provides only internal guidance

for NPS managers and staff. We agree.

TWS argues that the binding nature of the POLICIES was

settled in Davis v. Latschar, 202 F.3d 359 (D.C. Cir. 2000). We

are unconvinced. In Davis, the court accepted an “assertion”

that NPS intended to be bound by the MANAGEMENT POLICIES,

because the assertion was uncontested. Id. at 366 n.4. The

matter was not in dispute, so the court had no occasion to render

a final judgment on the issue. The issue is squarely posed in this

case, however, and the Government strenuously argues that the

agency did not intend to establish binding rules when it

promulgated the MANAGEMENT POLICIES.

In determining whether an agency has issued a binding

norm or merely a statement of policy, we are guided by two

lines of inquiry. “One line of analysis focuses on the effects of

the agency action,” asking whether the agency has “(1)

‘impose[d] any rights and obligations,’ or (2) ‘genuinely [left]

the agency and its decisionmakers free to exercise discretion.’”

CropLife Am. v. EPA, 329 F.3d 876, 883 (D.C. Cir. 2003)

(quoting Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C.

Cir. 1987) (per curiam)). “[T]he language actually used by the

agency” is often central to making such determinations. Cmty.
18

Nutrition Inst., 818 F.2d at 946. “The second line of analysis

focuses on the agency’s expressed intentions.” CropLife Am.,

329 F.3d at 883. The analysis under this line of cases “look[s]

to three factors: (1) the [a]gency’s own characterization of the

action; (2) whether the action was published in the Federal

Register or the Code of Federal Regulations; and (3) whether the

action has binding effects on private parties or on the agency.”

Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999).

Under either line of analysis, the MANAGEMENT POLICIES is a

statement of policy, not a codification of binding rules.

While the text of the POLICIES on occasion uses mandatory

language, such as “will” and “must,” the document as a whole

does not read as a set of rules. It lacks precision in its directives,

and there is no indication of how the enunciated policies are to

be prioritized. 

It is particularly noteworthy that NPS did not issue its

MANAGEMENT POLICIES through notice and comment

rulemaking under 5 U.S.C. § 553 of the APA. Although the

agency twice gave notice in the Federal Register of proposed

policies, it never published a final version of the POLICIES in

either the Federal Register or, more significantly, in the Code of

Federal Regulations. 

Failure to publish in the Federal Register is indication that

the statement in question was not meant to be a regulation

since the [APA] requires regulations to be so published.

The converse, however, is not true: Publication in the

Federal Register does not suggest that the matter published

was meant to be a regulation, since the APA requires

general statements of policy to be published as well. The

real dividing point between regulations and general

statements of policy is publication in the Code of Federal

Regulations, which the statute authorizes to contain only

documents “having general applicability and legal effect,”

and which the governing regulations provide shall contain
19

only “each Federal regulation of general applicability and

current or future effect.”

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39

(D.C. Cir. 1986) (internal citations omitted). The

MANAGEMENT POLICIES never has been published in the Code

of Federal Regulations.

The agency’s characterization of the MANAGEMENT

POLICIES in the Federal Register is also telling. In its January

2000 announcement that a draft document was ready for public

comment, the agency explained that “[p]ark superintendents,

planners, and other NPS employees use management policies as

a reference source when making decisions that will affect units

of the national park system.” Notice of Availability of Draft

National Park Service Management Policies, 65 Fed. Reg. 2984

(Jan. 19, 2000). This statement is consistent with the

Introduction to the POLICIES which makes it clear that the

agency has retained unfettered discretion to act as it sees fit with

respect to the actions outlined in the POLICIES, including the

development of wilderness management plans. The Introduction

states:

Adherence to policy is mandatory unless specifically

waived or modified in writing by the Secretary, the

Assistant Secretary, or the Director.

MANAGEMENT POLICIES, Introduction, supra, at 5. This

language does not evidence an intent on the part of the agency

to limit its discretion and create enforceable rights. Rather, the

agency’s top administrators clearly reserved for themselves

unlimited discretion to order and reorder all management

priorities. This supports the Government’s contention that the

POLICIES is no more than a set of internal guidelines for NPS

managers and staff. 

Finally, it is significant that TWS points to no statutory

provision requiring NPS to develop wilderness management
20

plans. Neither the Wilderness Act nor the agency’s organic act

requires wilderness management plans. The fact that the

MANAGEMENT POLICIES does not emanate from a congressional

mandate further supports the conclusion that it was not meant

to establish binding norms.

We find that, on the basis of the foregoing considerations,

the conclusion is inescapable that the MANAGEMENT POLICES is

a nonbinding, internal agency manual intended to guide and

inform Park Service managers and staff. There is no indication

that the agency meant for these internal directives to be

judicially enforceable at the behest of members of the public

who question the agency’s management. For us to hold

otherwise on this record would not only be contrary to our case

law, but it would chill efforts by top agency officials to gain

control over their bureaucratic charges through internal

directives. In sum, the MANAGEMENT POLICIES is exactly what

it appears to be, a guidance manual for NPS managers and staff

that does not create enforceable regulations or modify existing

legal rights. 

III. CONCLUSION

For the reasons indicated above, we hereby dismiss the

majority of TWS’ claims for want of Article III standing, and we

deny TWS’ remaining non-statutory claims because they are

predicated on unenforceable agency statements of policy. 

The Government did not cross-appeal the District Court’s

orders covering five claims on which relief was granted to TWS.

We offer no judgment on these matters. Government counsel

acknowledged that NPS is presently complying with the District

Court’s orders relating to these five claims and conceded that no

review was properly sought on these matters.

So ordered.