Florida Defenders of the Environment v. United States Forest Service

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 25, 2021
• Docket: 20-12046
• Status: Unpublished

Opinion

USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 1 of 18

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit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. USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 2 of 18

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Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:17-cv-01128-HES-JBT ____________________

Before JORDAN, 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 USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 3 of 18

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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 USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 4 of 18

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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). USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 5 of 18

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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. USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 6 of 18

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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 USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 7 of 18

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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 USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 8 of 18

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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 USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 9 of 18

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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 USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 10 of 18

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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 USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 11 of 18

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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 USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 12 of 18

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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,

2In Florida, the Forest Service manages the Florida Scenic National Trail and three national forests: the Apalachicola National Forest, the Ocala USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 13 of 18

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“[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). USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 14 of 18

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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, USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 15 of 18

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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 USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 16 of 18

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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. USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 17 of 18

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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. USCA11 Case: 20-12046 Date Filed: 10/25/2021 Page: 18 of 18

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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.