Grant School District No.3 v. Dombeck

126 F. App'x 823

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2005
• Docket: No. 00-35385
• Status: Published

Opinion

MEMORANDUM

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Appellants, a group of citizens, organizations, and governmental entities of Grant County Oregon, seek declaratory and injunctive relief to compel the United States Forest Service to remove or treat timber in the Malheur National Forest. They do not challenge a particular instance of final agency action, but rather contend generally that the Forest Service unlawfully withheld or unreasonably delayed fulfilling its duties under the National Forest Management Act, 16 U.S.C. §§ 1600 et seq., the Clean Water Act, 33 U.S.C. §§ 1311, 1313, and the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., in violation of the Administrative Procedure Act, 5 U.S.C. (1). The district court dismissed for lack of subject matter jurisdiction and we affirm.

The Supreme Court’s recent decision in Norton v. Southern Utah Wilderness Alliance (“SUWA”), — U.S.-, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) controls the outcome here. In SUWA the Court held that “a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take, ” and not when the agency simply failed to fulfill its general statutory objectives. Id. at 2379. Appellants make no attempt to distinguish their case from the claims rejected in SUWA, and we see no basis upon which to do so.

Here, as in SUWA, the statutes and regulations at issue are “mandatory as to the object[s] to be achieved,” but leave “a great deal of discretion in deciding how to achieve [them].” Id. at 2380. “General deficiencies in compliance, unlike the failure to issue a ruling ... lack the specificity requisite for agency action.” Id. at 2381; see also Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108, 1109 (9th Cir. 2005) (applying SUWA). Accordingly, the district court correctly found that it lacked jurisdiction.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.