Florida Defenders of the Environment, et al v. United States Forest Service

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12046
Non-Argument Calendar
____________________
FLORIDA DEFENDERS OF THE ENVIRONMENT,
a Florida not-for-profit Corporation,
BRUCE KASTER,
JOSEPH LITTLE,
Plaintiffs-Appellants,
versus
UNITED STATES FOREST SERVICE,
Defendant-Appellee.
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2 Opinion of the Court 20-12046
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:17-cv-01128-HES-JBT
____________________
Before J ORDAN, ROSENBAUM , and GRANT, Circuit Judges.
PER CURIAM:
Acting to prevent “permanent damage” to the “uniquely
beautiful” Ocklawaha River, President Nixon canceled the Cross
Florida Barge Canal (Canal) in 1971 in response to litigation and
advocacy by environmental groups like Plaintiff Florida Defenders
of the Environment. While the river was spared from further dam-
age, it still took a significant blow. By the time President Nixon
made his decision, nearly one third of the ambitious federal project
to create an inland shipping canal across northern Florida was com-
plete. Among the completed structures, the Rodman Dam, now
the Kirkpatrick Dam, dammed the Ocklawaha River and flooded
approximately 9,000 acres of forest to create the Rodman Reser-
voir. This lawsuit is a piece of a long-running campaign to remove
the dam and reservoir and restore the Ocklawaha River.
The State of Florida currently operates and maintains the
dam and reservoir, having been transferred nearly all the federal
government’s Canal-related land and structures in 1991. But por-
tions of the dam and reservoir occupy Ocala National Forest land
managed by the U.S. Forest Service, requiring the state to obtain a
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20-12046 Opinion of the Court 3
special-use permit to use and occupy the land. The state’s permit
expired in 2002, though, when it declined to sign a new permit that
would have required partial restoration of the Ocklawaha River.
And on several occasions since then, the state has refused to sign a
permit conditioning its use of national forest land on partial river
restoration.
In 2017, Florida Defenders of the Environment and two of
its senior members, Bruce Kaster and Joseph Little (collectively,
“FDE”), filed a lawsuit under the Administrative Procedure Act
(“APA”),
see 5 U.S.C. § 706, seeking to compel the Forest Service
to “assert its sovereign interest” in the national forest land at issue
and take action to protect and restore the Ocklawaha River. They
alleged that the Forest Service had abused its discretion and acted
contrary to law by permitting the state’s unauthorized use and oc-
cupancy of the Canal structures on national forest land. And they
sought to compel the Forest Service either to require the state to
remove the Canal structures and restore the land or to take such
action on its own.
The district court determined that it lacked subject-matter
jurisdiction to review the Forest Service’s decision not to take en-
forcement action against the state because it was “committed to
agency discretion by law.” 5 U.S.C. § 701(a)(2). On appeal, De-
fenders maintain that review is possible because there are mean-
ingful standards by which to judge the agency’s exercise of discre-
tion. But the refusal to take enforcement action is traditionally
committed to agency discretion by law, and FDE fails to identify
any statutory or regulatory constraints on the agency’s discretion
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4 Opinion of the Court 20-12046
to handle expired or unauthorized uses of national forest land. We
therefore affirm the dismissal of FDE’s complaint, although we va-
cate to allow the district court to reenter its judgment without prej-
udice.
I.
Florida Defenders of the Environment is a non-profit envi-
ronmental organization formed in 1969 to protect the Ocklawaha
River from environmental damage caused by the Canal.1 FDE has
continued to focus efforts on restoring damage the defunct Canal
caused to the Ocklawaha River. Kaster is a lawyer and member of
FDE’s Board of Trustees, and he frequently recreationally visits the
lands at issue. Little is a law professor and FDE’s Vice President.
Authorized by Congress in 1942, the Canal was conceived as
a 107-mile navigable shortcut linking the Gulf of Mexico and the
Atlantic Ocean through the northern part of the Florida peninsula.
Congress eventually approved funds for the project in the 1960s.
The U.S. Army Corps of Engineers (“Corps”) began construction
on the Canal and, as relevant here, finished construction of the
Rodman Dam, now the Kirkpatrick Dam, in 1968. Nearby, the
Corps also constructed the Eureka Lock and Dam (Eureka Lock).
The Kirkpatrick Dam impounded the Ocklawaha River and
1 We take the following facts from both FDE’s complaint and the adminis-
trative record filed by the Forest Service, which may be accessed online on
the Forest Service’s website. See U.S. Department of Agriculture, Forest
Service, National Forests in Florida — 2017 Rodman Dam Litigation,
https://www.fs.usda.gov/detail/florida/landmanage-
ment/?cid=FSEPRD584834 (last visited August 6, 2021).
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20-12046 Opinion of the Court 5
created the Rodman Reservoir, flooding approximately 9,000 acres
of forest, including approximately 670 acres of national forest land.
Portions of Kirkpatrick Dam, Rodman Reservoir, and Eureka Lock
(the Canal structures) are located in the Ocala National Forest.
In 1971, when about one third of the Canal had been built,
President Nixon ordered “a halt to further construction of the [Ca-
nal] to prevent potentially serious environmental damages.”
United States v. 2,997.06 Acres of Land, 471 F.2d 320, 325 n.8 (5th
Cir. 1972) (quoting President Nixon’s statement suspending con-
struction of the Canal). In particular, President Nixon cited the en-
vironmental damage to and potential destruction of the Ocklawaha
River, a “uniquely beautiful, semitropical stream, one of a very few
of its kind in the United States.”
Id. Congress officially deauthor-
ized the Canal in 1990, and the Corps transferred its land interests
and structures in the Canal to the State of Florida in 1991, including
the Canal structures. The Canal has since been transformed into
the Marjorie Harris Carr Cross Florida Greenway, a public conser-
vation and recreation area named for the FDE’s co-founder who
led opposition to the Canal.
The Forest Service, however, retained its land interests, re-
quiring the state to obtain a permit to use and occupy the Canal
structures on national forest land. Such a permit is a “special use
authorization which provides permission, without conveying an
interest in land, to occupy and use National Forest System land or
facilities for specified purposes, and which is both revocable and
terminable.” 36 C.F.R. § 251.51.
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In 1994, the state, acting through the Florida Department of
Environmental Protection, applied for and obtained a special-use
permit, which was set to expire at the end of 1998. The state ap-
plied to renew the permit before it expired, and the Forest Service
extended the original permit pending a final decision on the re-
newal application.
At that time, both parties shared the goal of removing the
Kirkpatrick Dam and Rodman Reservoir in whole or part and re-
storing the Ocklawaha River. The state’s renewal application
sought authorization to operate and maintain the dam and reser-
voir “until implementation of the Governor and Cabinet’s decision
to partially restore the Oklawaha River through breaching Kirkpat-
rick Dam.”
The Forest Service prepared an environmental impact state-
ment regarding the state’s continued use and occupancy and then
approved a new special-use permit on the express condition that
the state begin to partially restore the Ocklawaha River basin. Ac-
cording to the Forest Service’s December 2001 Record of Decision,
the partial restoration plan included lowering the water level in the
Rodman Reservoir, breaching the Kirkpatrick Dam, removing
some infrastructure, and altering some topography. The Record
of Decision stated that the state’s failure to make “progress . . . in
the restoration effort based on the proposed schedule in the Special
Use Permit” would be grounds for revocation of the permit. All
work was to be done by 2006.
The state declined to sign the renewal permit in 2002, citing
the lack of funding for the partial restoration plan but affirming the
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20-12046 Opinion of the Court 7
state’s commitment to removing the Kirkpatrick Dam and restor-
ing the Ocklawaha River. As a result, the original special-use per-
mit expired in 2002.
In March 2010, the Forest Service issued a new special-use
permit to the state with the same conditions, but the state declined
to sign it. Around three years later, in February 2013, the Forest
Service again submitted to the state a special-use permit together
with a letter noting that it was required to have “an authorization
for occupancy,” that the prior permit had expired, and that termi-
nation or expiration of the permit required the permitholder to re-
move structures and improvements or be liable for the cost of such
removal. The letter further noted that fluctuating water levels at
the reservoir were continuing to damage Forest Service land and
resources and were making it “more difficult to restore the Ock-
lawaha River and its associated habitats as agreed to by the State of
Florida and expected of the [Forest Service] and the State by the
public.” The state did not execute the permit, and it continues to
operate the Canal structures on national forest land without au-
thorization.
In December 2016, Kaster and Little petitioned the Forest
Service under 5 U.S.C. § 553(e) to issue and implement rules to en-
force the terms of the original special-use permit and to redress the
continuing failure of the Forest Service to manage its land in a man-
ner consistent with the Forest Plan for national forests in Florida.
The Forest Service denied the petition in March 2017 in part
on the ground that the state could continue to use and occupy na-
tional forest lands under the original permit, which was “still in
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8 Opinion of the Court 20-12046
effect.” It later revised its decision in June 2018, after FDE filed this
lawsuit, omitting that rationale and opining that rulemaking was
not an appropriate vehicle to enforce the terms of a special-use per-
mit, that the petitioners could not force the Forest Service to prior-
itize enforcing one particular use over other enforcement priori-
ties, and that the Forest Service’s actions did not conflict with the
current Forest Plan.
II.
In October 2017, FDE sued the Forest Service in federal dis-
trict court under the APA,
see 5 U.S.C. § 701
et seq., seeking to
compel it to enforce the terms of the Record of Decision and the
original special-use permit. Count I sought declaratory relief that
the Forest Service violated the Federal Land Policy and Manage-
ment Act (“FLPMA”) by allowing the Canal structures to occupy
federal lands without a valid special-use permit, as well as an in-
junction requiring the state, a nonparty, to apply for a new permit.
Count II sought declaratory relief that the original special-use per-
mit had expired and that the Forest Service’s denial of the rulemak-
ing petition was arbitrary and capricious. Counts III and IV sought
a declaration that the Forest Service’s “failure to enforce” the terms
and conditions of the special-use permit (Count III) and the perti-
nent regulations (Count IV) were actions “unlawfully withheld” or
“unreasonably delayed” under the APA. Finally, Count V sought
an injunction directing the Forest Service to enforce the original
permit’s terms and the pertinent regulations.
The Forest Service filed a motion to dismiss on the grounds
that (1) the APA did not authorize judicial review because
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20-12046 Opinion of the Court 9
enforcement decisions in relation to special-use permits were com-
mitted to agency discretion under 5 U.S.C. § 701(a)(2); (2) Counts
III and IV sought action from the Forest Service that was not legally
required and thus could not be compelled under 5 U.S.C. § 706; (3)
all of the claims were time-barred; and (4) Count II was mooted by
the Forest Service’s revised June 2018 response to the petition.
The district court granted the Forest Service’s motion and
dismissed the action with prejudice. The court held that it lacked
subject-matter jurisdiction because the Forest Service’s decision
not to take enforcement action was “committed to agency discre-
tion by law” under § 701(a)(2) and therefore not judicially review-
able. The court then denied FDE’s motion to alter or amend the
judgment, and FDE timely appealed.
III.
Whether an agency action is barred from judicial review un-
der 5 U.S.C. § 701(a)(2) presents a question of subject-matter juris-
diction that we review
de novo.
Animal Legal Def. Fund v. U.S.
Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015).
A.
The APA “sets forth the procedures by which federal agen-
cies are accountable to the public and their actions subject to re-
view by the courts.”
Franklin v. Massachusetts, 505 U.S. 788, 796
(1992). Under the APA, federal courts may “set aside agency ac-
tions found to be ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’”
Conservancy of Sw. Fla.
v. U.S. Fish & Wildlife Serv., 677 F.3d 1073, 1078 (11th Cir. 2012)
(quoting 5 U.S.C. § 706(2)(A)). The statute also allows federal
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10 Opinion of the Court 20-12046
courts to “compel agency action unlawfully withheld or unreason-
ably delayed.” 5 U.S.C. § 706(1).
The APA establishes a basic presumption of judicial review
of agency action.
Dep’t of Homeland Sec. v. Regents of the Univ.
of Cal., 591 U.S. ___, 140 S. Ct. 1891, 1905 (2020). That presump-
tion can be rebutted by showing, as relevant here, that the “agency
action is committed to agency discretion by law.”
Id. (quoting 5
U.S.C. § 701(a)(2)).
The Supreme Court has “read § 701(a)(2) to preclude judi-
cial review of certain categories of administrative decisions that
courts traditionally have regarded as committed to agency discre-
tion.”
Lincoln v. Vigil, 508 U.S. 182, 191 (1993). One such category
is “an agency’s decision not to take enforcement action.”
Heckler
v. Chaney, 470 U.S. 821, 830–31 (1985).
“[A] constellation of reasons underpin this tradition.”
Re-
gents, 140 S. Ct. at 1906. An agency decision not to enforce typi-
cally “involves a complicated balancing of a number of factors
which are peculiarly within its expertise,” such the proper distribu-
tion of limited agency resources and “ordering of its priorities.”
Heckler, 470 U.S. at 830–31. And non-enforcement generally does
not involve an agency’s “coercive power over an individual’s lib-
erty or property rights.”
Id. at 832. Nor does it involve any action
that “provides a focus for judicial review.”
Id. An agency’s decision
not to enforce also shares some characteristics with a prosecutor’s
decision not to indict, “a decision which has long been regarded as
the special province of the Executive Branch.”
Id. These concerns
animated the Court’s conclusion that “an agency’s decision not to
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20-12046 Opinion of the Court 11
take enforcement action should be presumed immune from judi-
cial review under § 701(a)(2).”
Id.
Relying on similar concerns, we held in
Conservancy that a
refusal to initiate rulemaking to designate certain critical habitat
under the Endangered Species Act was committed to agency dis-
cretion by law. 677 F.3d at 1084–85. We explained that “[t]he de-
cision whether to initiate rulemaking, like the exercise of enforce-
ment discretion, typically involves a complex balancing of factors,
such as the agency’s priorities and the availability of resources, that
the agency is better equipped than courts to undertake.”
Id. at
1084. We also noted that “a refusal to initiate rulemaking, like a
nonenforcement decision, does not involve the exercise of coercive
power over an individual’s liberty or property rights.”
Id. (quota-
tion marks omitted). Given these features, we concluded that the
decision not to initiate rulemaking in that case was committed to
agency discretion by law.
Id. at 1085.
Notwithstanding § 701(a)(2), APA review is available when
an applicable statute contains a “meaningful standard against
which to judge the agency’s exercise of discretion.”
Heckler, 470
U.S. at 830. In other words, the availability of review depends on
whether “Congress has indicated an intent to circumscribe agency
enforcement discretion, and has provided meaningful standards for
defining the limits of that discretion.”
Id. at 834. There must be,
in short, “law to apply.”
Id.
B.
Here, the district court correctly concluded that FDE chal-
lenges the Forest Service’s “refusal to take requested enforcement
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12 Opinion of the Court 20-12046
action,”
Heckler, 470 U.S. at 831, which is a decision traditionally
“regarded as committed to agency discretion,”
Lincoln, 508 U.S. at
191. FDE claims that the Forest Service was prohibited by FLPMA
and its own regulations from allowing the state to use and occupy
national forest land without a permit or the ability to comply with
the statutory and regulatory requirements to obtain one. And they
seek to compel the Forest Service to enforce the terms of the orig-
inal permit governing expiration and either require the state to re-
move the Canal structures or eject the state and take the necessary
actions to restore the Ocklawaha River in accordance with the Rec-
ord of Decision.
The Forest Service’s decision not to enforce the terms of the
original permit or to take other enforcement action against the
state after the permit expired in 2002 “involves a complicated bal-
ancing of a number of factors which are peculiarly within its exper-
tise.”
Heckler, 470 U.S. at 831. These factors included whether
Forest Service resources were best spent on this violation or an-
other, the likelihood of success if it acted, how to proceed against
the violation in a manner that “best fit[] the agency’s overall poli-
cies,” and whether it “ha[d] enough resources to undertake the ac-
tion at all.”
Id. The agency also had to consider the state’s substan-
tial interests in the Canal structures, the structures’ unique prove-
nance, and the agency’s cooperative relationship with the state on
this and other projects, among other things.2 As in
Heckler, here,
2 In Florida, the Forest Service manages the Florida Scenic National Trail
and three national forests: the Apalachicola National Forest, the Ocala
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20-12046 Opinion of the Court 13
“[t]he agency is far better equipped than the courts to deal with the
many variables involved in the proper ordering of its priorities.”
Id. at 832. Plus, also like in
Heckler, the Forest Service’s nonen-
forcement decision did not involve an agency’s “coercive power
over an individual’s liberty or property rights.”
Id.
For these reasons, the Forest Service’s decision not to en-
force is “immune from judicial review under § 701(a)(2)” unless
Congress “has provided guidelines for the agency to follow in ex-
ercising its enforcement powers.”
Id. at 832–33. The same is true
of the Forest Service’s denial of Kaster and Little’s petition for rule-
making, which largely requested enforcement action related to the
Canal structures, for essentially the same reasons.
See Conserv-
ancy, 677 F.3d at 1084–85.
C.
FDE contends that meaningful standards constrained the
agency’s discretion because a clear “statutory direction” prohibits
the “unauthorized occupation and use of national forest lands.” So
in FDE’s view, the Forest Service abused its discretion when it per-
mitted such unauthorized use by the state in relation to the Canal
structures.
But “[o]nly if a specific statute somehow limits the agency’s
discretion to act is there sufficient ‘law to apply’ as to allow judicial
review.”
Greenwood Utilities Comm’n v. Hodel, 764 F.2d 1459,
National Forest, and the Osceola National Forest. U.S. Department of Ag-
riculture, Forest Service, National Forests in Florida,
https://www.fs.usda.gov/florida (last visited August 6, 2021).
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14 Opinion of the Court 20-12046
1464 (11th Cir. 1985);
see Heckler, 470 U.S. at 837 (holding that a
statute did not provide meaningful standards because it “applie[d]
only to a situation where a violation has already been established”
and did not “speak[] to the criteria which shall be used by the
agency for investigating possible violations of the Act). Statutory
language that merely authorizes enforcement or sanctions is not
enough.
See Heckler, 470 U.S. at 835 (statutory provisions author-
izing the agency to conduct investigations and stating that any per-
son who violates the statute “shall be imprisoned . . . or fined” did
not constrain the agency’s enforcement discretion).
In attempting to establish Congressional “intent to circum-
scribe agency enforcement discretion,”
id. at 830, FDE points us to
several statutory provisions which do the following: (a) “author-
ize[]” the Forest Service “to grant, issue, or renew rights-of-way”
on national forest land, 43 U.S.C. § 1761(a); (b) direct the Forest
Service, before granting, issuing, or renewing a right-of-way, to re-
quire applicants to submit information necessary to make right-of-
way determinations,
see id. § 1761(b)(1); (c) specify that rights-of-
way “shall be limited to a reasonable term in light of all circum-
stances concerning the project,”
id. § 1764(b); (d) direct that the
Forest Service “shall grant, issue, or renew a right-of-way . . . only
when [it] is satisfied that the applicant has the technical and finan-
cial capability to construct the project for which the right-of-way is
requested” in accord with the requirements of FLPMA,
id.
§ 1764(j); and (e) provide that “no right-of-way” on national forest
land “shall be granted, issued, or renewed . . . except under and
subject to the provisions, limitations, and conditions” of FLPMA,
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20-12046 Opinion of the Court 15
id. § 1770(a). They also cite regulations that require “individuals or
entities” to obtain a special-use permit “[b]efore conducting a spe-
cial use” on national forest land, 36 C.F.R. § 251.50(a), specify the
information that must be submitted in applying for special-use au-
thorization,
id. § 251.54(b), (d)(3), and demand that “[a]ny violation
. . . shall be punished” by a fine or imprisonment,
id. § 261.1b.
These provisions do not establish meaningful standards for
review of the agency’s discretion. On the whole, they grant the
Forest Service authority to regulate the use and occupancy of na-
tional forest land, and they outline procedural and substantive re-
quirements related to the issuance of permits. But they do not es-
tablish guidelines “for the agency to follow in exercising its enforce-
ment powers.”
Heckler, 470 U.S. at 832–33. In particular, nothing
in the cited statutory or regulatory authority speaks to the Forest
Service’s authority with regard to uses of national forest land for
which special-use authorization has expired.
See id. at 834, 837;
Hodel, 764 F.2d at 1464.
FDE claims that the Forest Service was “require[d] . . . to
ensure [the state]’s occupancy of use of national forest lands is au-
thorized by a special use permit.” Appellant’s Br. at 25. But in fact,
the Forest Service has tried over the years—in 2010 and 2013, most
recently—to do just that, attempting to issue the state new permits
and reminding it that the Canal structures required special-use au-
thorization. The state, for its part, though, has declined to sign or
be bound by a new permit requiring partial restoration of the Ock-
lawaha River. FDE does not identify any authority limiting the
Forest Service’s discretion to deal with that refusal or the state’s
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16 Opinion of the Court 20-12046
continued, unauthorized use of national forest land after its permit
expired.
Rather, the only potential sources of guidance relating to ex-
pired or unauthorized uses reflect that the Forest Service retains
broad discretion to act as it sees fit in these circumstances. Forest
Service regulations require the permitholder, upon expiration or
termination of the permit, to “remove within a reasonable time the
structures and improvements” and restore the land, but they per-
mit an “authorized officer” of the Forest Service to “waive[]” that
requirement and to determine what counts as a “reasonable time.”
See 36 C.F.R. § 251.60(i).3 Likewise, the original special-use permit
provided that the permitholder, upon termination of the permit,
must “remove within a reasonable time
prescribed by the author-
ized officer all structures and improvements, except those owned
by the United States, and shall restore the site.” Both sources
largely outline the responsibilities of the permitholder and, to the
3 36 C.F.R. § 251.60(i) states,
Upon revocation or termination of a special use au-
thorization, the holder must remove within a reasonable time
the structures and improvements and shall restore the site to
a condition satisfactory to the authorized officer, unless the
requirement to remove structures or improvements is other-
wise waived in writing or in the authorization. If the holder
fails to remove the structures or improvements within a rea-
sonable period, as determined by the authorized officer, they
shall become the property of the United States, but holder
shall remain liable for the costs of removal and site restora-
tion.
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20-12046 Opinion of the Court 17
extent they concern the agency, do not specify enforcement re-
sponsibilities or guidelines and instead grant the agency significant
discretion to determine whether and when to remove any existing
infrastructure. Neither source provides meaningful standards by
which to judge the Forest Service’s discretion regarding expired or
unauthorized uses.
In sum, the Forest Service’s decision not to take enforce-
ment action against the state for its unauthorized use of national
forest land—whether by enforcing the terms of the original permit
and ordering the state to “remove . . . all structures and improve-
ments . . . and restore the site” or by taking action independently
to restore the Ocklawaha River—was “committed to agency dis-
cretion by law.” 5 U.S.C. § 701(a)(2). In the absence of meaningful
standards to judge the Forest Service’s exercise of discretion in this
context, its decisions are not subject to judicial review under the
Administrative Procedure Act.
IV.
For the reasons stated, the district court was correct to con-
clude that it lacked jurisdiction to review the Forest Service’s re-
fusal to take requested enforcement action under 5 U.S.C.
§ 701(a)(2).4 Nevertheless, we agree with FDE that the dismissal
4 Because we conclude that the district court lacked jurisdiction under 5
U.S.C. § 701(a)(2), we need not and do not address the Forest Service’s ar-
guments that FDE lacked Article III standing, that there was no “final
agency action” subject to APA review, or that FDE’s claims are barred by
the statute of limitations.
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18 Opinion of the Court 20-12046
for lack of jurisdiction should have been without prejudice, rather
than with prejudice.
See Stalley ex rel. U.S. v. Orlando Reg’l
Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (“A dis-
missal for lack of subject matter jurisdiction is not a judgment on
the merits and is entered without prejudice.”). We therefore va-
cate and remand for the limited purpose of allowing the district
court to dismiss the case without prejudice. But we affirm the dis-
trict court in all other respects.
AFFIRMED IN PART; VACATED AND REMANED IN
PART.
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