The opinion
NOONAN, Circuit Judge,
concurring:
Impaired Impartiality. That judges cannot supplement them salaries, however inadequate they may be, by imposing fines provided by law on those convicted of lawbreaking seems to be a pretty elementary principle of justice. Yet the civilized state of Ohio and the Supreme Court of that state saw nothing to object to in the practice until the Supreme Court of the United States unanimously held it to be a deprivation of due process for a municipal officer to get $12 out of a $100 fine that he had legally imposed. Tumey v. Ohio, 273 U.S. 510 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927).
Almost as elementary is the extension of this principle to administrative adjudicators. See Gibson v. Berryhill, 411 U.S. 564, 579 , 93 S.Ct. 1689 , 36 L.Ed.2d 488 (1973) (citation omitted).
■ The bias created need not be personal, that is, the adjudicator to be found biased need not be paid off by his decision. The bias can arise from his decision being a way of raising money for the municipality he serves. Ward v. Vill. of Monroeville, 409 U.S. 57 , 93 S.Ct. 80 , 34 L.Ed.2d 267 (1972). Once again, the civilized state of Ohio and its Supreme Court had to be corrected by the United States Supreme Court finding a denial of due process when fines imposed by the mayor were “a substantial portion” of the municipality’s income, although the mayor’s own salary was fixed and independent of the fines. Id. at 59 , 93 S.Ct. 80 . The test, failed by Ohio’s statutory scheme, was whether “a possible temptation” was offered the may- or acting as judge “not to hold the balance nice, clear, and true.” Id. at 60 , 93 S.Ct. 80 (quoting Tumey, 273 U.S. at 532 , 47 S.Ct. 437 ).
It would not seem to require a Euclid to draw appropriate inferences from the governing principle of impartiality. Yet it has not been easy. Two justices dissented in *1235 Village of Monroeville, asserting that only-personal gain disqualified the decider. 409 U.S. at 62 , 93 S.Ct. 80 (White, J. and Rehnquist, J., dissenting). Forty years after Tumey , three states still used the statutory scheme of a judge supporting himself by his own judgments that was condemned as unconstitutional in Tumey. See K. Davis, Administrative Law Text § 12.04 (1972). In many instances the necessity of having a judge has been allowed to trump the necessity of a judge who is impartial. Id. at § 12.05. A distinction has also been drawn between a judicial or quasi-judicial role and a legislative role where impartiality is not a requisite. Id. at § 12.04. A financial interest may also be so slight as to be discounted as a disqualifier. Marshall v. Jerrico, Inc., 446 U.S. 238, 245-46 , 100 S.Ct. 1610 , 64 L.Ed.2d 182 (1980).
Custom or indifference cannot legalize a departure from what is required by the criterion of impartiality. Necessity may make an inroad, and it might be argued that the USFS is necessitous; it says it doesn’t have the money it needs unless it sells the forests. That argument takes too narrow a view of the position of the USFS. It has a budget that may be malleable. It exists within a department that may have discretionary funds. It is the arm of a nation whose credit, not inexhaustible, is strong enough not to require supplementation by sales of the nation’s timber. Necessity, in a word, has not been established.
We do not need, on the facts of this case, more information on the budget of the Forest Service. It has been suggested in earlier litigation concerning similar timber sales by the Forest Service that this information should be furnished. See Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1178 (9th Cir.2006) (Noonan, J., concurring); Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291 , 1309 (9th Cir.2003) (Noonan, J., concurring). In this case, the Forest Service makes no secret of the importance of the sales to its approval of the projects. Fund-raising for fuel-reduction is a substantial purpose.
The Forest Service has a final argument, unfurled as its lead argument in oral argument. It is that its approval of the three contested projects denies no person the right to life, liberty or property. Hence due process of law is not required and nothing but due process requires impartiality. This bold claim calls for careful consideration.
Undisputed is the standing of Sierra Forest to assert the interest of those individual members affected by the destruction of the environment and its species. “Aesthetic-and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society,” important enough to confer standing under the Administrative Procedure Act, 5 U.S.C. § 702 , to redress an injury in fact. Sierra Club v. Morton, 405 U.S. 727, 734 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972). These are elements of the liberty enjoyed by a citizen. An injury in fact inflicted by a decision of the USFS must necessarily be the denial of a result to which the plaintiffs were legally entitled. If the plaintiffs were entitled to the result, were the plaintiffs not entitled to an unbiased decision-maker? The injury asserted here is alleged to arise under NEPA. Invoking the federal law, Sierra Forest was entitled to seek its application by an agency which was without an interest of its own in a result contrary to the law.
Why is there a case before us if no person’s rights were at stake? We do not sit to adjudicate general policy disputes but to decide controversies. A controversy calls for two parties, each asserting an interest and a right that protects that interest. So here, Sierra Forest is not a *1236 plaintiff without an interest and a right. We do not need to dismiss the case for want of a controversy. Nor do we need to find that no right is at issue. The right Sierra Forest seeks to vindicate here did not arise with the USFS’s decision. The right was what Sierra Forest sought to vindicate before the USFS.
It is possible that a crucial distinction here may be made between rulemaking and adjudicating, if it is meaningful to separate administrative action into these two tight compartments. Rulemaking by an administrative agency, like legislation by a legislature, seems exempted from scrutiny for conflict of interest. When the Forest Service develops a forest plan it is engaged in rulemaking and it needs only to provide for the kind of notice and comment that rulemaking requires. See 36 C.F.R. § 219.9 . Forest plans “do not grant, withhold, or modify any contract, permit, or other legal instrument, subject anyone to civil or criminal liability, or create any legal rights.” Id. at § 219.3(b). A forest plan in itself “does not give anyone a legal right to cut trees, nor does it abolish anyone’s legal authority to object to trees being cut.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 , 118 S.Ct. 1665 , 140 L.Ed.2d 921 (1998).
Rights enter the picture when the Forest Service moves to site-specific projects. In this step, the Forest Service implements the plan in a specific location by selecting a timber sale area, preparing an environmental assessment in accordance with NEPA, allowing public comment, and awarding a timber harvesting contract to the highest bidder. See id. at 729-30 , 118 S.Ct. 1665 ; Sierra Club v. Peterson, 228 F.3d 559, 562 (5th Cir.2000); 36 C.F.R. § 223.1 . Each site-specific project and timber sale contract must be consistent with the applicable forest plan. 36 C.F.R. § 219.8 (e), § 223.30.
The Forest Service introduces its bias at the stage of making the forest plan, while case law prohibits bias only at the stage of awarding contracts. This delay in the bite of the bias should not insulate it from judicial review. The financial incentive of the Forest Service in implementing the forest plan is as operative, as tangible, and as troublesome as it would be if instead of an impartial agency decision the agency was the paid accomplice of the loggers.
That the difference between judicial and legislative functions makes a difference as to the impropriety of monetary benefit to the decision-makers is a fallacy. The bribery of a congressman is a crime. See 18 U.S.C. § 201 ; United States v. Brewster, 408 U.S. 501 , 92 S.Ct. 2531 , 33 L.Ed.2d 507 (1972). It would not make a difference if the bribe came from a trade association on behalf of a whole industry. See, e.g., United States v. Sun-Diamond Growers of California, 526 U.S. 398 , 119 S.Ct. 1402 , 143 L.Ed.2d 576 (1999). In the instant case the decision-makers are influenced by the monetary reward to their agency, a reward to be paid by a successful bidder as part of the agency’s plan.
Independently of the grounds set out in my opinion for the court, I would hold this defect in the process to vitiate entirely the ultimate decisions, without the necessity of balancing, and to require judicial setting aside of the implementation of the process.