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Justices worry over SUWA’s role ideas

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WASHINGTON — U.S. Supreme Court justices worried aloud Monday that a Utah case could make federal judges, instead of the Interior Department, the new day-to-day managers of public lands.

The Southern Utah Wilderness Alliance wants the ability to sue the government to force action on protecting wildernesslike areas in Utah from off-road vehicle damage. "It's not like we want to take over an agency," SUWA attorney Paul M. Smith told the court in oral arguments.

"But it sounds like it," said Chief Justice William Rehnquist.

Justice Antonin Scalia added that what SUWA seeks could bring "continued supervision of an agency" by a judge. "That's putting the district judge in the place of the secretary of the Interior."

But Smith said the alternative is to let Interior Department officials ignore the law.

SUWA and other environmental groups say the U.S. Bureau of Land Management ignored its own land-use plans and other rules prohibiting ORV damage on public Utah lands that are under consideration for designation as wilderness.

Deputy U.S. Solicitor General Edwin S. Kneedler argued such land-use plans are for BLM's internal planning only and are not enforceable by courts. He said they express goals that could be altered by such things as budget cuts.

The Utah district court used the same reasoning when it dismissed the original case, before a trial was held. The 10th Circuit Court of Appeals overturned that, and the federal government appealed to the Supreme Court.

Smith said the public should have the right to sue to make an agency follow its own rules — especially when inaction is causing serious damage, as he contends ORVs are doing in Utah.

James S. Angell, attorney for Earthjustice, said after the oral arguments that the land-use plans are not just internal planning documents but "contracts" with the public that are adopted after a long public process.

"What the agency is saying here is that they can turn their back on those planning commitments," Angell said.

Smith noted that after the lawsuit was filed, the BLM did close many areas to ORVs as sought by SUWA and others. Angell added, "They only made those actions because there was litigation hanging over their head."

However, Scalia said during arguments that the courts don't have a role in overseeing executive decisions. "That's the president's role, not our role at all," Scalia said, noting that if people do not like what an administration is doing they can vote it out of office.

Several other justices, including Ruth Bader Ginsburg, Stephen Breyer and Sandra Day O'Connor, worried aloud about broad suits that could bring review of overall management by an agency, instead of suits that look at specific decisions by an agency, such as allowing ORVs in one specific area.

Smith, however, said part of the problem is BLM would not originally make decisions about ORVs in specific areas, and then claim it could not be sued because it had not made any final decisions. "There has to be a power in federal court at some point to compel action," he argued.

Scalia said environmental groups might properly, then, sue to force BLM to make a timely decision, rather than sue up front to force certain actions.

The case is expected to be decided later this year. It comes as ORV use has exploded in Utah. From 1980 to to 2000, the number of ORVs registered in Utah grew from 9,000 to 83,000.

Fourteen state governments and a virtual Who's Who of environmental groups filed friend-of-the-court briefs siding with SUWA in the case, while Utah and several rural counties and off-road recreation groups filed briefs siding with the Bush administration.

The 14 states siding with SUWA are California, Colorado, Connecticut, Illinois, Massachusetts, Missouri, Montana, Nevada, New Mexico, New York, Oklahoma, Oregon, South Dakota and Wisconsin.

E-mail: lee@desnews.com