source: Caselaw Access Project

author: Justice Scalia

license: Public Domain

text:
    NORTON, SECRETARY OF THE INTERIOR, et al. v. SOUTHERN UTAH WILDERNESS ALLIANCE et al.
    No. 03-101.
    Argued March 29, 2004 —
    Decided June 14, 2004

      Deputy Solicitor General Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Olson, Assistant Attorney General Sansonetti, Deputy Assistant Attorney General Clark, Barbara McDowell, An

      drew Mergen, John A. Bryson, Susan Pacholski, and Roderick E. Walston.

      Paul M. Smith argued the cause for respondents. With him on the brief for respondents Southern Utah Wilderness Alliance et al. were Jerome L. Epstein, William M. Hohengarten, Elaine J. Goldenberg, Stephen H. M. Bloch, James S. Angelí, Patti Goldman, and Todd D. True. Paul A. Turcke and Paul W. Mortensen filed a brief for respondents Utah Shared Access Alliance et al.

         Robin L. Rivett filed a brief for the Pacific Legal Foundation as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Manuel Medeiros, Solicitor General, Richard Frank, Chief Deputy Attorney General, William Brieger, Acting Chief Assistant Attorney General, Theodora Berger, Senior Assistant Attorney General, Ken Alex and Craig Thompson, Supervising Deputy Attorneys General, and Susan Durbin and James Potter, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Lisa Madigan of Illinois, Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Brian Sandoval of Nevada, Patricia Madrid of New Mexico, Eliot Spitzer of New York, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Larry Long of South Dakota, and Peggy A. Lauten-schlager of Wisconsin; for the Defenders of Wildlife et al. by Katherine A Meyer and Eric R. Glitzenstein; for the Montana Wilderness Association by Jack R. Tuholske; for the National Organization of Veterans’ Advocates by Daniel D. Wedemeyer; for the Natural Resources Defense Council et al. by Charles E. Koob and Johanna H. Wald; for Robert W. Adler et al. by Robert G. Dreher; and for Russell Train et al. by Nicholas C. Yost and Gary Widman.

   Justice Scalia

delivered the opinion of the Court.

In this case, we must decide whether the authority of a federal court under the Administrative Procedure Act (APA) to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U. S. C. § 706(1), extends to the review of the United States Bureau of Land Management’s stewardship of public lands under certain statutory provisions and its own planning documents.

I

Almost half the State of Utah, about 23 million acres, is federal land administered by the Bureau of Land Management (BLM), an agency within the Department of Interior. For nearly 30 years, BLM’s management of public lands has been governed by the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U. S. C. § 1701 et seq., which “established a policy in favor of retaining public lands for multiple use management.” Lujan v. National Wildlife Federation, 497 U. S. 871, 877 (1990). “Multiple use management” is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, “including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values.” 43 U. S. C. § 1702(c). A second management goal, “sustained yield,” requires BLM to control depleting uses over time, so as to ensure a high level of valuable uses in the future. § 1702(h). To these ends, FLPMA establishes a dual regime of inventory and planning. Sections 1711 and 1712, respectively, provide for a comprehensive, ongoing inventory of federal lands, and for a land use planning process that “projeet[s]” “present and future use,” § 1701(a)(2), given the lands’ inventoried characteristics.

Of course not all uses are compatible. Congress made the judgment that some lands should be set aside as wilderness at the expense of commercial and recreational uses. A preFLPMA enactment, the Wilderness Act of 1964, 78 Stat. 890, provides that designated wilderness areas, subject to certain exceptions, “shall [have] no commercial enterprise and no permanent road,” no motorized vehicles, and no manmade structures. 16 U. S. C. § 1133(c). The designation of a wilderness area can be made only by Act of Congress, see 43 U.S.C. § 1782(b).

Pursuant to §1782, the Secretary of the Interior (Secretary) has identified so-called “wilderness study areas” (WSAs), roadless lands of 5,000 acres or more that possess “wilderness characteristics,” as determined in the Secretary’s land inventory. § 1782(a); see 16 U.S.C. § 1131(c). As the name suggests, WSAs (as well as certain wild lands identified prior to the passage of FLPMA) have been subjected to further examination and public comment in order to evaluate their suitability for designation as wilderness. In 1991, out of 3.3 million acres in Utah that had been identified for study, 2 million were recommended as suitable for wilderness designation. 1 U. S. Dept. of Interior, BLM, Utah Statewide Wilderness Study Report 3 (Oct. 1991). This recommendation was forwarded to Congress, which has not yet acted upon it. Until Congress acts one way or the other, FLPMA provides that “the Secretary shall continue to manage such lands ... in a manner so as not to impair the suitability of such areas for preservation as wilderness.” 43 U. S. C. § 1782(c). This nonimpairment mandate applies to all WSAs identified under § 1782, including lands considered unsuitable by the Secretary. See §§ 1782(a), (b); App. 64 (BLM Interim Management Policy for Lands Under Wilderness Review).

Aside from identification of WSAs, the main tool that BLM employs to balance wilderness protection against other uses is a land use plan — what BLM regulations call a “resource management plan.” 43 CFR § 1601.0 — 5(k) (2003). Land use plans, adopted'-after notice and comment, are “designed to guide and control future management actions,” § 1601.0-2. See 43 U. S. C. § 1712; 43 CFR § 1610.2 (2003). Generally, a land use plan describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps. § 1601.0-5(k). Under FLPMA, “[t]he Secretary shall manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans ... when they are available.” 43 U. S. C. § 1732(a).

Protection of wilderness has come into increasing conflict with another element of multiple use, recreational use of so-called off-road vehicles (ORVs), which include vehicles primarily designed for off-road use, such as lightweight, four-wheel “all-terrain vehicles,” and vehicles capable of such use, such as sport utility vehicles. See 43 CFR § 8340.0-5(a) (2003). According to the United States Forest Service’s most recent estimates, some 42 million Americans participate in off-road travel each year, more than double the number two decades ago. H. Cordell, Outdoor Recreation for 21st Century America 40 (2004). United States sales of all-terrain vehicles alone have roughly doubled in the past five years, reaching almost 900,000 in 2003. See Tanz, Making Tracks, Making Enemies, N. Y. Times, Jan. 2, 2004, p. F1, col. 5; Discover Today’s Motorcycling, Motorcycle Industry Council, Press Release (Feb. 13, 2004), http:// www.motorcycles.org (all Internet materials as visited June 4, 2004, and available in Clerk of Court’s case file). The use of ORVs on federal land has negative environmental consequences, including soil disruption and compaction, harassment of animals, and annoyance of wilderness lovers. See Brief for Natural Resources Defense Council et al. as Amici Curiae 4-7, and studies cited therein. Thus, BLM faces a classic land use dilemma of sharply inconsistent uses, in a context of scarce resources and congressional silence with respect to wilderness designation.

In 1999, respondents Southern Utah Wilderness Alliance and other organizations (collectively SUWA) filed this action in the United States District Court for Utah against petitioners BLM, its Director, and the Secretary. In its second amended complaint, SUWA sought declaratory and injunc-tive relief for BLM’s failure to act to- protect public lands in Utah from damage caused by ORV use. SUWA made three claims that are relevant here: (1) that BLM had violated its nonimpairment obligation under § 1782(c) by allowing degradation in certain WSAs; (2) that BLM had failed to implement provisions in its land use plans relating to ORV use; and (3) that BLM had failed to take a “hard look” at whether, pursuant to the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq., it should undertake supplemental environmental analyses for areas in which ORV use had increased. SUWA contended that it could sue to remedy these three failures to act pursuant to the APA’s provision of a cause of action to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U. S. C. §706(1).

The District Court entered a dismissal with respect to the three claims. A divided panel of the Tenth Circuit reversed. 301 F. 3d 1217 (2002). The majority acknowledged that under § 706(1), “federal courts may order agencies to act only where the agency fails to carry out a mandatory, nondiscre-tionary duty.” Id., at 1226. It concluded, however, that BLM’s nonimpairment obligation was just such a duty, and therefore BLM could be compelled to comply. Under similar reasoning, it reversed the dismissal with respect to the land use plan claim; and likewise reversed dismissal of the NEPA claim. We granted certiorari. 540 U. S. 980 (2003).

II

All three claims at issue here involve assertions that BLM failed to take action with respect to ORV use that it was required to take. Failures to act are sometimes remediable under the APA, but not always. We begin by considering what limits the APA places upon judicial review of agency inaction.

The APA authorizes suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U. S. C. § 702. Where no other statute provides a private right of action, the “agency action” complained of must be “final agency action.” §704 (emphasis added). “[A]gency action” is defined in § 551(13) to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” (Emphasis added.) The APA provides relief for a failure to act in § 706(1): “The reviewing court shall... compel agency action unlawfully withheld or unreasonably delayed.”

Sections 702, 704, and 706(1) all insist upon an “agency action,” either as the action complained of (in §§ 702 and 704) or as the action to be compelled (in §706(1)). The definition of that term begins with a list of five categories of decisions made or outcomes implemented by an agency — “agency rule, order, license, sanction [or] relief.” §551(13). All of those categories involve circumscribed, discrete agency actions, as their definitions make clear: “an agency statement of . . . future effect designed to implement, interpret, or prescribe law or policy” (rule); “a final disposition ... in a matter other than rule making” (order); a “permit ... or other form of permission” (license); a “prohibition . . . or . . . taking [of] other compulsory or restrictive action” (sanction); or a “grant of money, assistance, license, authority,” etc., or “recognition of a claim, right, immunity,” etc., or “taking of other action on the application or petition of, and beneficial to, a person” (relief). §§551(4), (6), (8), (10), (11).

The terms following those five categories of agency action are not defined in the APA: “or the equivalent or denial thereof, or failure to act.” § 551(13). But an “equivalent . . . thereof” must also be discrete (or it would not be equivalent), and a “denial thereof” must be the denial of a discrete listed action (and perhaps denial of a discrete equivalent).

The final term in the definition, “failure to act,” is in our view properly understood as a failure to take an agency action — that is, a failure to take one of the agency actions (including their equivalents) earlier defined in §551(13). Moreover, even without this equation of “act” with, “agency action” the interpretive canon of ejusdem generis would attribute to the last item (“failure to act”) the same characteristic of discreteness shared by all the preceding items. See, e. g., Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 384-385 (2003). A “failure to act” is not the same thing as a “denial.” The latter is the agency’s act of saying no to a request; the former is simply the omission of an action without formally rejecting a request — for example, the failure to promulgate a rule or take some decision by a statutory deadline. The important point is that a “failure to act” is properly understood to be limited, as are the other items in §551(13), to a discrete action.

A second point central to the analysis of the present case is that the only agency action that can be compelled under the APA is action legally required. This limitation appears in § 706(1)’s authorization for courts to “compel agency action unlawfully withheld.” (Emphasis added.) In this regard the APA carried forward the traditional practice prior to its passage, when judicial review was achieved through use of the so-called prerogative writs — principally writs of mandamus under the All Writs Act, now codified at 28 U. S. C. § 1651(a). The mandamus remedy was normally limited to enforcement of “a specific, unequivocal command,” ICC v. New York, N. H. & H. R. Co., 287 U. S. 178, 204 (1932), the ordering of a “ ‘precise, definite act. . . about which [an official] had no discretion whatever,’” United States ex rel. Dunlap v. Black, 128 U. S. 40, 46 (1888) (quoting Kendall v. United States ex rel. Stokes, 12 Pet. 524, 613 (1838)). See also ICC v. United States ex rel. - Humboldt S. S. Co., 224 U. S. 474, 484 (1912). As described in the Attorney General’s Manual on the APA, a document whose reasoning we have often found persuasive, see, e. g., Darby v. Cisneros, 509 U. S. 137, 148, n. 10 (1993); Chrysler Corp. v. Brown, 441 U. S. 281, 302, n. 31 (1979); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 546 (1978), §706(1) empowers a court only to compel an agency “to perform a ministerial or non-discretionary act,” or “to take action upon a matter, without directing how it shall act.” Attorney General’s Manual on the Administrative Procedure Act 108 (1947) (emphasis added). See also L. Jaffe, Judicial Control of Administrative Action 372 (1965); K. Davis, Administrative Law §257, p. 925 (1951).

Thus, 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. These limitations rule out several kinds of challenges. The limitation to discrete agency action precludes the kind of broad programmatic attack we rejected in Lujan v. National Wildlife Federation, 497 U. S. 871 (1990). There we considered a challenge to BLM’s land withdrawal review program, couched as unlawful agency “action” that the plaintiffs wished to have “set aside” under § 706(2). Id., at 879. We concluded that the program was not an “agency action”:

“[Respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congréss, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular ‘agency action’ that causes it harm.” Id., at 891 (emphasis in original).

The plaintiffs in National Wildlife Federation would have fared no better if they had characterized the agency’s alleged “failure to revise land use plans in proper fashion” and “failure to consider multiple use,” ibid., in terms of “agency action unlawfully withheld” under § 706(1), rather than agency action “not in accordance with law” under § 706(2).

The limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law (which includes, of course, agency regulations that have the force of law). Thus, when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency’s discretion, a court can compel the agency to act, but has no power to specify what the action must be. For example, 47 U. S. C. § 251(d)(1), which required the Federal Communications Commission “to establish regulations to implement” interconnection requirements “fwjithin 6 months” of the date of enactment of the Telecommunications Act of 1996, would have supported a judicial decree under the APA requiring the prompt issuance of regulations, but not a judicial decree setting forth the content of those regulations.

Ill

A

With these principles in mind, we turn to SUWA’s first claim, that by permitting ORV use in certain WSAs, BLM violated its mandate to “continue to manage [WSAs] ... in a manner so as not to impair the suitability of such areas for preservation as wilderness,” 43 U. S. C. § 1782(c). SUWA relies not only upon § 1782(c) but also upon a provision of BLM’s Interim Management Policy for Lands Under Wilderness Review, which interprets the nonimpairment mandate to require BLM to manage WSAs so as to prevent them from being “degraded so far, compared with the area’s values for other purposes, as to significantly constrain the Congress’s prerogative to either designate [it] as wilderness or release it for other uses.” App. 65.

Section 1782(c) is mandatory as to the object to be achieved, but it leaves BLM a great deal of discretion in deciding how to achieve it. It assuredly does not mandate, with the clarity necessary to support judicial action under § 706(1), the total exclusion of ORV use.

SUWA argues that §1782 does contain a categorical imperative, namely, the command to comply with the nonim-pairment mandate. It contends that a federal court could simply enter a general order compelling compliance with that mandate, without suggesting any particular manner of compliance. It relies upon the language from the Attorney General’s Manual quoted earlier, that a court can “take action upon a matter, without directing how [the agency] shall act,” and upon language in a case cited by the Manual noting that “mandamus will lie . . . even though the act required involves the exercise of judgment and discretion,” Safeway Stores, Inc. v. Brown, 138 F. 2d 278, 280 (Emerg. Ct. App. 1943). The action referred to in these excerpts, however, is discrete agency action, as we have discussed above. General deficiencies in compliance, unlike the failure to issue a ruling that was discussed in Safeway Stores, lack the specificity requisite for agency action.

The principal purpose of the APA limitations we have discussed — and of the traditional limitations upon mandamus from which they were derived — is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve. If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved — which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency management. To take just a few examples from federal resources management, a plaintiff might allege that the Secretary had failed to “manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance,” or to “manage the [New Orleans Jazz National] [Historical [P]ark in such a manner as will preserve and perpetuate knowledge and understanding of the history of jazz,” or to “manage the [Steens Mountain] Cooperative Management and Protection Area for the benefit of present and future generations.” 16 U. S. C. §§ 1333(a), 410bbb-2(a)(1), 460nnn-12(b). The prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with such congressional directives is not contemplated by the APA.

B

SUWA’s second claim is that BLM failed to comply with certain provisions in its land use plans, thus contravening the requirement that “[t]he Secretary shall manage the public lands ... in accordance with the land use plans ... when they are available.” 43 U. S. C. § 1732(a); see also 43 CFR § 1610.5-3(a) (2003) (“All future resource management authorizations and actions ... and subsequent more detailed or specific planning, shall conform to the approved plan”). The relevant count in SUWA’s second amended complaint alleged that BLM had violated a variety of commitments in its land use plans, but over the course of the litigation these have been reduced to two, one relating to the 1991 resource management plan for the San Rafael area, and the other to various aspects of the 1990 ORV implementation plan for the Henry Mountains area.

The actions contemplated by the first of these alleged commitments (completion of a route designation plan in the San Rafael area), and by one aspect of the second (creation of “use supervision files” for designated areas in the Henry

Mountains area) have already been completed, and these claims are therefore moot. There remains the claim, with respect to the Henry Mountains plan, that “in light of damage from ORVs in the Factory Butte area,” a sub-area of Henry Mountains open to ORV use, “the [plan] obligated BLM to conduct an intensive ORV monitoring program.” Brief for SUWA 7-8. This claim is based upon the plan’s statement that the Factory Butte area “will be monitored and closed if warranted.” App. 140. SUWA does not contest BLM’s assertion in the court below that informal monitoring has taken place for some years, see Brief for Appellee Secretary of Interior et al. in No. 01-4009 (CA10), p. 23, but it demands continuing implementation of a monitoring program. By this it apparently means to insist upon adherence to the plan’s general discussion of “Use Supervision and Monitoring” in designated areas, App. 148-149, which (in addition to calling for the use supervision files that have already been created) provides that “[r]esource damage will be documented and recommendations made for corrective action,” “[mjonitoring in open areas will focus on determining damage which may necessitate a change in designation,” and “emphasis on use supervision will be placed on [limited and closed areas].” Id., at 149. SUWA acknowledges that a monitoring program has recently been commenced. Brief for SUWA 12. In light, however, of the continuing action that existence of a “program” contemplates, and in light of BLM’s contention that the program cannot be compelled under § 706(1), this claim cannot be considered moot.

The statutory directive that BLM manage “in accordance with” land use plans, and the regulatory requirement that authorizations and actions “conform to” those plans, prevent BLM from taking actions inconsistent with the provisions of a land use plan. Unless and until the plan is amended, such actions can be set aside as contrary to law pursuant to 5 U. S. G. § 706(2). The claim presently under discussion, however, would have us go further, and conclude that a statement in a plan that BLM “will” take this, that, or the other action, is a binding commitment that can be compelled under § 706(1). In our view it is not — at least absent clear indication of binding commitment in the terms of the plan.

FLPMA describes land use plans as tools by which “present and future use is projected” 48 U. S. C. § 1701(a)(2) (emphasis added). The implementing regulations make clear that land use plans are a preliminary step in the overall process of managing public lands — “designed to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses.” 43 CFR § 1601.0-2 (2003). The statute and regulations confirm that a land use plan is not ordinarily the medium for affirmative decisions that implement the agency’s “projections].” Title 43 U. S. C. § 1712(e) provides that “[t]he Secretary may issue management decisions to implement land use plans” — the decisions, that is, are distinct from the plan itself. Picking up the same theme, the regulation defining a land use plan declares that a plan “is not a final implementation decision on actions which require further specific plans, process steps, or decisions under specific provisions of law and regulations.” 43 CFR § 1601.0~5(k) (2003). The BLM’s Land Use Planning Handbook specifies that land use plans are normally not used to make site-specific implementation decisions. See Handbook II — 2.

Plans also receive a different agency review process from implementation decisions. Appeal to the Department’s Board of Land Appeals is available for “a specific action being proposed to implement some portion of a resource management plan or amendment.” 43 CFR §1610.5-3(b) (2003). However, the Board, which reviews “decisions rendered by Departmental officials relating to ... [t]hé use and disposition of public lands and their resources,” §4.1(b)(3)(i), does not review the approval of a plan, since it regards a plan as a policy determination, not an implementation decision. See, e. g., Wilderness Society, 109 I. B. L. A. 175, 178 (1989); Wilderness Society, 90 I. B. L. A. 221, 224 (1986); see also Handbook II — 2, IV-3. Plans are protested to the BLM director, not appealed.

The San Rafael plan provides an apt illustration of the immense scope of projected activity that a land use plan can embrace. Over 100 pages in length, it presents a comprehensive management framework for 1.5 million acres of BLM-administered land. Twenty categories of resource management are separately discussed, including mineral extraction, wilderness protection, livestock grazing, preservation of cultural resources, and recreation. The plan lays out an ambitious agenda for the preparation of additional, more detailed plans and specific next steps for implementation. Its introduction notes that “[a]n [ORV] implementation plan is scheduled to be prepared within 1 year following approval of the [San Rafael plan].” San Rafael Plan 9. Similarly “scheduled for preparation” are activity plans for certain environmentally sensitive areas, “along with allotment management plans, habitat management plans, a fire management plan, recreation management plans . . . , cultural resource management plans for selected sites, watershed activity plans, and the wild and scenic river management plan.” Ibid. The projected schedule set forth in the plan shows “[ajnticipated [ijmplementation” of some future plans within one year, others within three years, and still others, such as certain recreation and cultural resource management plans, at a pace of “one study per fiscal year.” Id., at 95-102.

Quite unlike a specific statutory command requiring an agency to promulgate regulations by a certain date, a land use plan is generally a statement of priorities; it guides and constrains actions, but does not (at least in the usual case) prescribe them. It would be unreasonable to think that either Congress or the agency intended otherwise, since land use plans nationwide would commit the agency to actions far in the future, for which funds have not yet been appropriated. Some plans make explicit that implementation of their programmatic content is subject to budgetary constraints. See Brief for Petitioners 42-43, and n. 18 (quoting from such plans). While the Henry Mountains plan does not contain such a specification, we think it must reasonably be implied. A statement by BLM about what it plans to do, at some point, provided it has the funds and there are not more pressing priorities, cannot be plucked out of context and made a basis for suit under § 706(1).

Of course, an action called for in a plan may be compelled when the plan merely reiterates duties the agency is already obligated to perform, or perhaps when language in the plan itself creates a commitment binding on the agency. But allowing general enforcement of plan terms would lead to pervasive interference with BLM’s own ordering of priorities. For example, a judicial decree compelling immediate preparation of all of the detailed plans called for in the San Rafael plan would divert BLM’s energies from other projects throughout the country that are in fact more pressing. And while such a decree might please the environmental plaintiffs in the present case, it would ultimately operate to the detriment of sound environmental management. Its predictable consequence would be much vaguer plans from BLM in the future — making coordination with other agencies more difficult, and depriving the public of important information concerning the agency’s long-range intentions.

We therefore hold that the Henry Mountains plan’s statements to the effect that BLM will conduct “Use Supervision and Monitoring” in designated areas — like other “will do” projections of agency action set forth in land use plans — are not a legally binding commitment enforceable under §706(1). That being so, we find it unnecessary to consider whether the action envisioned by the statements is sufficiently discrete to be amenable to compulsion under the APA.

IV

Finally, we turn to SUWA’s contention that BLM failed to fulfill certain obligations under NEPA. Before addressing whether a NEPA-required duty is actionable under the APA, we must decide whether NEPA creates an obligation in the first place. NEPA requires a federal agency to prepare an environmental impact statement (EIS) as part of any “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U. S. C. §4332(2)(C). Often an initial EIS is sufficient, but in certain circumstances an EIS must be supplemented. See Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 370-374 (1989). A regulation of the Council on Environmental Quality requires supplementation where “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 CFR § 1502.9(c)(1)(ii) (2003). In Marsh, we interpreted §4332 in light of this regulation to require an agency to take a “hard look” at the new information to assess whether supplementation might be necessary. 490 U. S., at 385; see id., at 378-385.

SUWA argues that evidence of increased ORV use is “significant new circumstances or information” that requires a “hard look.” We disagree. As we noted in Marsh, supplementation is necessary only if “there remains ‘major Federal actio[n]’ to occur,” as that term is used in §4332(2)(C). Id., at 374. In Marsh, that condition was met: The dam construction project that gave rise to environmental review was not yet completed. Here, by contrast, although the “[aJp-proval of a [land use plan]” is a “major Federal action” requiring an EIS, 43 CFR § 1601.0-6 (2003) (emphasis added), that action is completed when the plan is approved. The land use plan is the “proposed action” contemplated by the regulation. There is no ongoing “major Federal action” that could require supplementation (though BLM is required to perform additional NEPA analyses if a plan is amended or revised, see §§ 1610.5-5, 5-6).

* * *

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Of course § 706(1) also authorizes courts to “compel agency action .. . unreasonably delayed” — but a delay cannot be unreasonable with respect to action that is not required.

       Title 5 U. S. C. § 706(2) provides, in relevant part:
      “The reviewing court shall—
      “(2) hold unlawful and set aside agency action ... found to be—
      “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ....”

       See U. S. Dept. of Interior, BLM, San Rafael Route Designation Plan (2003), http://www.ut.blm.gov/sanrafaelohv/wtheplan.htm; 3 App. to Brief for Appellants in No. 01-4009 (CA10), p. 771 (declaration of manager for relevant BLM field office, noting the establishment of monitoring files for the Henry Mountains area); Brief for Respondent SUWA et al. 12 (hereinafter Brief for SUWA) (acknowledging completion of these actions).
      It is arguable that the complaint sought not merely creation but continuing maintenance of use supervision files, in which case (for the reasons set forth with respect to the ORV monitoring program later in text) that claim would not be moot. If so, what we say below with regard to the merits of the ORV monitoring claim would apply equally to the use supervision fil.e claim.

       The exceptions “are normally limited to those required by regulation, such as designating [ORV] areas, roads, and trails (see 43 CFR 8342).” U. S. Dept. of Interior, BLM, Land Use Planning Handbook II — 2 (2000) (hereinafter Handbook). See, e. g., U. S. Dept. of Interior, BLM, San Rafael Final Resource Management Plan 63 (1991) (hereinafter San Rafael Plan) (available at http://www.ut.blm.gov/planning/OTHERS/ SRARMP-ROD%20MAY %201991.pdf).

       We express no view as to whether a court could, under § 706(1), enforce a duty to monitor ORV use imposed by a BLM regulation, see 43 CFR § 8342.3 (2003), That question is not before us.


author: Justice Souter Justice Scalia,

text:
    UNITED STATES v. DOMINGUEZ BENITEZ
    No. 03-167.
    Argued April 21, 2004 —
    Decided June 14, 2004

      Dan Himmelfarb argued the cause for the United States. With him on the briefs were Solicitor General Olson, Assistant Attorney General Wray, and Deputy Solicitor General Dreeben.

      Myra D. Mossman, by appointment of the Court, 540 U. S. 1175, argued the cause and filed a brief for respondent.

         Stevan A. Buys filed a brief for Arnaldo Rafael Vicente InfanteCabrera as amicus curiae urging affirmance.

   Justice Souter

delivered the opinion of the Court.

Respondent claims the right to withdraw his plea of guilty as a consequence of the District Court’s failure to give one of the warnings required by Federal Rule of Criminal Procedure-11. Because the claim of Rule 11 error was not preserved by timely objection, the plain-error standard of Rule 52(b) applies, with its requirement to prove effect on substantial rights. The question is what showing must thus be made to obtain relief for an unpreserved Rule 11 failing, and we hold that a defendant is obliged to show a reasonable probability that, but for the error, he would not have entered the plea.

I

In early May 1999, a confidential informant working with law enforcement arranged through respondent Carlos Dominguez Benitez (hereinafter Dominguez) to buy several pounds of methamphetamine. First, the informant got a sample from Dominguez, and a week later Dominguez went to a restaurant in Anaheim, California, to consummate the sale in the company of two confederates, one of whom brought a shopping bag with over a kilogram of the drugs. The meeting ended when the informant gave a signal and officers arrested the dealers. Dominguez confessed to selling the methamphetamine and gave information about his supplier and confederates.

A federal grand jury indicted Dominguez on two counts: conspiracy to possess more than 500 grams of methamphetamine, and possession of 1,391 grams of a methamphetamine mixture, both with intent to distribute. On the conspiracy count, Dominguez faced a statutory, mandatory minimum sentence of 10 years, with a maximum of life. 84 Stat. 1260, 21 U. S. C. §§ 841(b)(1)(A), 846. The District Court appointed counsel, who began talking with the Government about a plea agreement.

In September 1999, the District Court received the first of several letters from Dominguez, in which he asked for a new lawyer and expressed discomfort with the plea agreement his counsel was encouraging him to sign. On counsel’s motion, the court held a status conference, at which Dominguez spoke to the judge. Again he said he was dissatisfied with his representation, and wanted a “better deal.” The court asked whether he was “talking about a disposition ... other than trial,” and Dominguez answered, “At no time have I decided to go to any trial.” App. 46-47. Counsel spoke to the same effect later in the proceeding, when he said that he had “told [the prosecutor] all along that there won’t be a trial on the [date set] based on my client’s representations that he doesn’t want a trial.” Id., at 51. The court explained to Dominguez that it could not help him in plea negotiations, and found no reason to change counsel.

Shortly after that, the parties agreed that Dominguez would plead guilty to the conspiracy, and the Government would dismiss the possession charge. The Government stipulated that Dominguez would receive what is known as a safety-valve reduction of two levels. See United States Sentencing Commission, Guidelines Manual §§2Dl.l(b)(6), 5C1.2 (Nov. 1999) (hereinafter USSG). The safety valve was important because it would allow the court to invoke 18 U. S. C. § 3553(f), authorizing a sentence below the otherwise mandatory minimum in certain cases of diminished culpability, the only chance Dominguez had for a sentence under 10 years. That chance turned on satisfying five conditions, one going to Dominguez’s criminal history, which the agreement did not address. The agreement did, however, warn Dominguez that it did not bind the sentencing court, and that Dominguez could not withdraw his plea if the court did not accept the Government’s stipulations or recommendations. At a hearing the next day, Dominguez changed his plea to guilty. In the plea colloquy, the court gave almost all the required Rule 11 warnings, including the warning that the plea agreement did not bind the court, but the judge failed to mention that Dominguez could not withdraw his plea if the court did not accept the Government’s recommendations. See Fed. Rule Crim. Proc. 11(c)(3)(B).

When the Probation Office subsequently issued its report, it found that Dominguez had three prior convictions, two of them under other names, which neither defense counsel nor the prosecutor had known at the time of the plea negotiations. The upshot was that Dominguez was ineligible for the safety valve, and so had no chance to escape the sentence of 10 years. After receiving two more letters from Dominguez complaining about the quality of counsel’s representation, the District Court sentenced Dominguez to the mandatory minimum. At the sentencing hearing, all counsel told the court that they had thought Dominguez might at least have been eligible for the safety-valve mitigation, but agreed that with three convictions, he was not. Dominguez told the court that he had “never had any knowledge about the points of responsibility, the safety valve, or anything like that.” App. 109. The court replied that in light of the “lengthy change of plea proceedings” it was “difficult ... to accept what” Dominguez said. Id., at 112.

On appeal, Dominguez argued that the District Court’s failure to warn him, as Rule 11(c)(3)(B) instructs, that he could not withdraw his guilty plea if the court did not accept the Government’s recommendations required reversal. After waiting for United States v. Vonn, 535 U. S. 55 (2002), a divided panel of the Court of Appeals for the Ninth Circuit agreed, 310 F. 3d 1221 (2002), and cited United States v. Olano, 507 U. S. 725 (1993), in applying the plain-error standard. The court held that the District Court had indeed erred; and that the error was plain, affected Dominguez’s substantial rights, and required correction in the interests of justice.

To show that substantial rights were affected, the Court of Appeals required Dominguez to “prove that the court’s error was not minor or technical and that he did hot understand the rights at issue when he entered his guilty plea.” 310 F. 3d, at 1225. The court rejected the Government’s arguments that the written plea agreement or the District Court’s other statements in the plea colloquy sufficiently advised Dominguez of his rights, given Dominguez’s inability to speak English and the assurances of both counsel that he would likely qualify under the safety-valve provision. Judge Tallman dissented, with the warning that the majority’s analysis followed neither Vonn nor Circuit precedent. 310 F. 3d, at 1227-1228.

We granted certiorari, 540 U. S. 1072 (2003), on the question “[wjhether, in order to show that a violation of Federal Rule of Criminal Procedure 11 constitutes reversible plain error, a defendant must demonstrate that he would not have pleaded guilty if the violation had not occurred.” Pet. for Cert. (I). We now reverse.

II

A

Because the Government agreed to make a nonbinding sentencing recommendation, Rule 11(c)(3)(B) required the court to “advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.” Rule 11, however, instructs that not every violation of its terms calls for reversal of conviction by entitling the defendant to withdraw his guilty plea. “A variance from the requirements of this rule is harmless error if it does not affect substantial rights.” Fed. Rule Crim. Proc. 11(h).

In Vonn, we considered the standard that applies when a defendant is dilatory in raising Rule 11 error, and held that reversal is not in order unless the error is plain. 535 U. S., at 63; see Olano, supra, at 731-737. Although we explained that in assessing the effect of Rule 11 error, a reviewing court must look to the entire record, not to the plea proceedings alone, Vonn, supra, at 74-75, we did not formulate the standard for determining whether a defendant has shown, as the plain-error standard requires, Olano, supra, at 734-735, an effect on his substantial rights.

B

It is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires reversal without regard to the mistake’s effect on the proceeding. See Arizona v. Fulmi-nante, 499 U. S. 279, 309-310 (1991) (giving examples). Dominguez does not argue that either Rule 11 error generally or the Rule 11 error here is structural in this sense.

Otherwise, relief for error is tied in some way to prejudicial effect, and the standard phrased as “error that affects substantial rights,” used in Rule 52, has previously been taken to mean error with a prejudicial effect on the outcome of a judicial proceeding. See Kotteakos v. United States, 328 U. S. 750 (1946). To affect “substantial rights,” see 28 U. S. C. §2111, an error must have “substantial and injurious effect or influence in determining the . . . verdict.” Kot-teakos, supra, at 776. In cases where the burden of demonstrating prejudice (or materiality) is on the defendant seeking relief, we have invoked a standard with similarities to the Kotteakos formulation in requiring the showing of “a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.” United States v. Bagley, 473 U. S. 667, 682 (1985) (opinion of Blackmun, J.) (adopting the prejudice standard of Strickland v. Washington, 466 U. S. 668, 694 (1984), for claims under Brady v. Maryland, 373 U. S. 83 (1963) (internal quotation marks omitted)); 473 U. S., at 685 (White, J., concurring in part and concurring in judgment) (same).

No reason has appeared for treating the phrase “affecting substantial rights” as untethered to a prejudice requirement when applying Olano to this nonstructural error, or for doubting that Bagley is a sensible model to follow. As Vonn makes clear, the burden of establishing entitlement to relief for plain error is on the defendant claiming it, and for several reasons, we think that burden should not be too easy for defendants in Dominguez’s position. First, the standard should enforce the policies that underpin Rule 52(b) generally, to encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error. See Vonn, 535 U. S., at 73. Second, it should respect the particular importance of the finality of guilty pleas, which usually rest, after all, on a defendant’s profession of guilt in open court, and are indispensable in the operation of the modern criminal justice system. See United States v. Timmreck, 441 U. S. 780, 784 (1979). And, in this case, these reasons are complemented by the fact, worth repeating, that the violation claimed was of Rule 11, not of due process.

We hold, therefore, that a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea. A defendant must thus satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is “sufficient to undermine confidence in the outcome” of the proceeding. Strickland, supra, at 694; Bagley, supra, at 682 (opinion of Blackmun, J. (internal quotation marks omitted)).

c

What we have already said points to why the test applied by the Court of Appeals in this case fell short. Its first element was whether the error was “minor or technical,” 310 F. 3d, at 1225, a phrase it took from United States v. Graibe, 946 F. 2d 1428 (CA9 1991), which in turn found it in the 1983 commentary that accompanied the amendment to Rule 11(h). 946 F. 2d, at 1433. But this element requires no examination of the effect of the omitted warning on a defendant’s decision, a failing repeated to a significant extent by the second element of the Ninth Circuit’s test, taken from United States v. Minore, 292 F. 3d 1109 (CA9 2002), which asks whether the defendant understood “the rights at issue when he entered his.guilty plea.” 310 F. 3d, at 1225. True, this enquiry gets closer than the first to a consideration of the likely effect of Rule 11 error on the defendant’s decision to plead; assessing a claim that an error affected a defendant’s decision to plead guilty must take into account any indication that the omission of a Rule 11 warning misled him. But the standard of the Court of Appeals does not allow consideration of any record evidence tending to show that a misunderstanding was inconsequential to a defendant’s decision, or evidence indicating the relative significance of other facts that may have borne on his choice regardless of any Rule 11 error.

Relevant evidence that the Court of Appeals thus passed over in this case included Dominguez’s statement to the District Court that he did not intend to go to trial, and his eoun-sel’s confirmation of that representation, made at the same hearing. The neglected but relevant considerations also included the implications raised by Dominguez’s protests at the sentencing hearing. He claimed that when he pleaded guilty he had “never had any knowledge about the points of responsibility, the safety valve, or anything like that.” App. 109. These statements, if credited, would show that Dominguez was confused about the law that applied to his sentence, about which the court clearly informed him, but they do not suggest any causal link between his confusion and the particular Rule 11 violation on which he now seeks relief.

Other matters that may be relevant but escape notice under the Ninth Circuit’s test are the overall strength of the Government’s case and any possible defenses that appear from the record, subjects that courts are accustomed to considering in a Strickland or Brady analysis. When the record made for a guilty plea and sentencing reveals evidence, as this one does, showing both a controlled sale of drugs to an informant and a confession, one can fairly ask a defendant seeking to withdraw his plea what he might ever have thought he could gain by going to trial. The point of the question is not to second-guess a defendant’s actual decision; if it is reasonably probable he would have gone to trial absent the error, it is no matter that the choice may have been foolish. The point, rather, is to enquire whether the omitted warning would have made the difference required by the standard of reasonable probability; it is hard to see here how the warning could have had an effect on Dominguez’s assessment of his strategic position. And even if there were reason to think the warning from the bench could have mattered, there was the plea agreement, read to Dominguez in his native Spanish, which specifically warned that he could not withdraw his plea if the court refused to accept the Government’s recommendations. This fact, uncontested by Dominguez, tends to show that the Rule 11 error made no difference to the outcome here.

* * *

We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice Scalia,

concurring in the judgment.

I agree with much of the Court’s opinion and concur in its disposition of the case. I do not, however, agree with its holding that respondent need not show prejudice by a preponderance of the evidence. Ante, at 83, n. 9.

By my count, this Court has adopted no fewer than, four assertedly different standards of probability relating to the assessment of whether the outcome of trial would have been different if error had not occurred, or if omitted evidence had been included. See Chapman v. California, 386 U. S. 18, 24 (1967) (adopting “harmless beyond a reasonable doubt” standard for preserving, on direct review, conviction obtained in a trial where constitutional error occurred); Brecht v. Abrahamson, 507 U. S. 619, 637 (1993) (rejecting Chapman in favor of the less defendant-friendly “ ‘substantial and injurious effect or influence’” standard of Kotteakos v. United States, 328 U. S. 750 (1946), for overturning conviction on collateral review); United States v. Agurs, 427 U. S. 97, 111-113 (1976) (rejecting Kotteakos for overturning conviction on the basis of violations of Brady v. Maryland, 373 U. S. 83 (1963), in favor of an even less defendant-friendly standard later described in Strickland v. Washington, 466 U. S. 668, 694 (1984), as a “reasonable probability”); id., at 693-694 (distinguishing the “reasonable probability” standard from the still yet less defendant-friendly “more likely than not” standard applicable to claims of newly discovered evidence). See generally Kyles v. Whitley, 514 U. S. 419, 434-436 (1995). Such ineffable gradations of probability seem to me quite beyond the ability of the judicial mind (or any mind) to grasp, and thus harmful rather than helpful to the consistency and rationality of judicial decisionmaking. That is especially so when they are applied to the hypothesizing of events that never in fact occurred. Such an enterprise is not factfinding, but closer to divination.

For purposes of estimating what would have happened, it seems to me that the only serviceable standards are the traditional “beyond a reasonable doubt” and “more likely than not.” We should not pretend to a higher degree of precision. I would not, therefore, extend our “reasonable probability” standard to the plain-error context. I would hold that, where a defendant has failed to object at trial, and thus has the burden of proving that a mistake he failed to prevent had an effect on his substantial rights,' he must show that effect to be probable, that is, more likely than not.

       Dominguez speaks and writes Spanish, not English. A certified translator was present for the hearings in court we describe, and for the plea agreement. Some of the letters are in English, and the record does not show who translated them or assisted Dominguez in writing them.

       The agreement also contemplated that Dominguez’s total offense level under the Guidelines would be 27, after considering the safety valve and a downward adjustment for acceptance of responsibility. Assuming so, and assuming he had no (or minimal) criminal history, his sentence could have been as low as 70 months. See USSG eh. 5, pt. A (sentencing table).

       At the time of the plea hearing, the requirement appeared at Federal Rule of Criminal Procedure 11(e)(2). It has not changed in substance. We refer to the current Rule in the text of this opinion, and do likewise for Rules 11(h) and 52(b), each of which has also received a stylistic amendment.

       Other Courts of Appeals employed different tests. See n. 8, infra.

       Congress gave the courts this instruction in 1983, in partial response to this Court’s decision in McCarthy v. United States, 394 U. S. 459 (1969), which it felt had caused too many reversals for reasons that were too insubstantial. See United States v. Vonn, 535 U. S. 55, 66-71 (2002) (discussing the history of Rule 11(h)).

       The argument, if made, would not prevail. The omission of a single Rule 11 warning without more is not colorably structural. Cf. United States v. Timmreck, 441 U. S. 780, 783-784 (1979) (holding that Rule 11 error without more is not cognizable on collateral review).

       When the Government has the burden of addressing prejudice, as in excusing preserved error as harmless on direct review of the criminal conviction, it is not enough to negate an effect on the outcome of the case. See Chapman v. California, 386 U. S. 18, 24 (1967) (“[T]he court must be able to declare a belief that [constitutional error] was harmless beyond a reasonable doubt”). When the Government has the burden of showing that constitutional trial error is harmless because it comes up on collateral review, the heightened interest in finality generally calls for the Government to meet the more lenient Kotteakos standard. Brecht v. Abrahamson, 507 U. S. 619, 638 (1993). If the burden is on a defendant to show prejudice in the first instance, of course, it would be easier to show a reasonable doubt that constitutional error affected a trial than to show a likely effect on the outcome or verdict.

       This standard is similar to one already applied by some Courts of Appeals, though those courts have not drawn a direct connection to Strickland and Bagley, and in some cases understood themselves to be reviewing for harmless, rather than plain, error. See United States v. Martinez, 289 F. 3d 1023, 1029 (CA7 2002) (on plain-error review, asking “whether any Rule 11 violations would have likely affected [the defendant’s] willingness to plead guilty”); see also United States v. Johnson, 1 F. 3d 296, 302 (CA5 1993) (en banc) (on harmless-error review, asking “whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty”); cf. United States v. Olano, 507 U. S. 725, 734-735 (1993) (the main difference as to substantial rights in the harmless- and plain-error analyses is that the burden of persuasion shifts from Government to defendant).

       One significant difference, however, between Rule 11 claims and claims under Strickland and Brady v. Maryland, 373 U. S. 83 (1963), is that the latter may be raised in postconviction proceedings such as a petition for habeas corpus, or a motion to vacate a sentence under 28 U. S. C. §2255. Those proceedings permit greater development of the record. See Massaro v. United States, 538 U. S. 500 (2003) (Strickland claims are not procedurally defaulted when brought for the first time on § 2255, because of the advantages of that form of proceeding for hearing, such cases). For Rule 11 claims, by contrast, that way is open only in the most egregious cases. Timmreck, supra; see also Vonn, 535 U. S., at 64 (noting that Rule 11(h) was not meant to disturb Timmreck). A defendant will rarely, if ever, be able to obtain relief for Rule 11 violations under §2255; and relief on direct appeal, given the plain-error standard that will apply in many cases, will be difficult to get, as it should be.' Cf. United States v. Raineri, 42 F. 3d 36, 45 (CA1 1994) (Boudin, J.) (“[JJust as there are many fair trials but few perfect ones, so flaws are also to be expected in Rule 11 proceedings”).
      Our rule does not, however, foreclose relief altogether. The reasonable-probability standard is not the same as, and should not be confused with, a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different. See Kyles v. Whitley, 514 U. S. 419, 434 (1995).

       This is another point of contrast with the constitutional question whether a defendant’s guilty plea was knowing and voluntary. We have held, for example, that when the record of a criminal conviction obtained by guilty plea contains no evidence that a defendant knew of the rights he was putatively waiving, the conviction must be reversed. Boykin v. Alabama, 395 U. S. 238, 243 (1969). We do not suggest that such a conviction could be saved even by overwhelming evidence that the defendant would have pleaded guilty regardless.