Last week, the United States District Court for the Middle District of Florida determined that a group of plaintiffs could bring a claim against the U.S. National Park Service challenging actions that were characterized by the Park Service as not ripe for judicial review. The court found that where an agency begins taking action signaling that it is “at least substantially less likely” to change course, such action may be ripe for adjudication. Additionally, the court stated that where an agency takes action in furtherance of a management policy, this may constitute final agency action even where additional authorization is required for the action to be complete. Though the court denied plaintiffs any of the relief they requested, this case serves as an example of a federal agency action that can be challenged before it is fully implemented.

In National Parks Conservation Association v. U.S. Department of Interior, Nos. 11-578, 11-647 (M.D. Fla. Sept. 19, 2014), the plaintiffs brought suit against the Park Service regarding certain land management decisions for the Big Cypress National Preserve Addition that included a determination of the portions of land that would be subject to motorized off-road vehicle (ORV) use and would be designated as wilderness areas. As part of this decision process, the Park Service prepared an environmental impact statement (EIS) pursuant to the National Environmental Policy Act. In 2011, the Park Service issued a record of decision (ROD) that adopted the preferred management alternative. This alternative identified areas where ORV trails could be located and delineated the areas eligible for protection as “wilderness” under the Wilderness Act. This decision amended a previous decision in 2006 by reducing the acreage of land to be proposed as wilderness area by approximately 40,000 acres. The plaintiffs’ suit claimed that the 40,000 acre reduction and the ORV Plan governing motorized vehicle use were unlawful under the Administrative Procedure Act (APA).

Though the ROD contained designations for both ORV use and wilderness areas, it did not authorize ORV use, nor did it conclude the wilderness-designation process. As the Park Service noted, “recreational ORV use in the Addition… cannot lawfully occur absent completion of the rulemaking process.” Slip Op. at 19. Regarding the designation of wilderness lands under the Wilderness Act, the Park Service provides a recommended eligibility determination to the President, who in turn makes a recommendation to Congress. Ultimately, Congress has the sole power to declare land a wilderness area.  16 U.S.C. § 1132(c). In its decision, the court noted that Congress had not approved the proposed designation of wilderness lands. Thus, the Park Service argued that the plaintiffs’ claims were not ripe and that there was no final agency action to review under the APA.

The court held that the plaintiffs’ claims were ripe for review and that the Park Service had taken a final action reviewable under the APA. The lynchpin of the court’s decision was the fact that the Park Service had taken certain actions in furtherance of its proposed decisions regarding both the exclusion of certain land as proposed wilderness areas and creation of ORV trails. The court noted that the Park Service was “no longer managing the 40,000 acres to preserve eligibility for wilderness designation, as its policy would dictate if the 40,000 acres had been found wilderness eligible.” Slip Op. at 20. The court also stated that it was “undisputed that the NPS has begun to implement the Plan and has begun to spend money, even without a final rule” because construction of access points and access facilities had commenced and the record demonstrated that the Park Service had begun “groundtruthing” some ORV trails. Id. at 40. The court found these actions to constitute implementation of the decision approved by the ROD, making the claims both ripe and final under the APA. Id. at 44 (“Here, it is clear that a decisionmaking process has been consummated, and implementation has begun (although it is far from completed).”).

Though the facts of this case are narrow, the court’s decision may provide an avenue for challenging a federal action even where additional rulemaking procedures are necessary before the action transitions from the planning stage to the operational stage.