Record and brief — Summers v. Earth Island Institute

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Text

No. 07-463

Title: Priscilla Summers, et al , Petitioners

Earth Island Institute, et al.

Docketed: October 5, 2007

Lower Ct: United States Court of Appeals for the Ninth Circuit

Case Nos.: (05-16975, 05-17078)

Decision Date: June 8, 2007

Questions

Presented

~~~Date~~~ ~~~~~~~ Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~

Aug 24 2007 Application (07A170) to extend the time to file a petition for a writ of

certiorari from September 6, 2007 to October 5, 2007, submitted to Justice

Kennedy.

Aug 27 2007 Application (07A170) granted by Justice Kennedy extending the time to

file until October 5, 2007.

Oct 5 2007 Petition for a writ of certiorari filed. (Response due November 5, 2007)

Oct 18 2007 Order extending time to file response to petition to and including December

5, 2007.

Dec 5 2007 Brief of respondents Earth Island Institute, et al. in opposition filed.

Dec 19 2007 DISTRIBUTED for Conference of January 11, 2008.

Dec 21 2007 Reply of petitioners filed. (Distributed. )

Jan 14 2008 DISTRIBUTED for Conference of January 18, 2008.

Jan 18 2008 Petition GRANTED. The brief of petitioners is to be filed on or before

Monday, February 25, 2008. The brief of respondents is to be filed on or

before Monday, March 24, 2008. A reply brief, if any, is to be filed in

accordance with Rule 25.3 of the Rules of this Court.

Jan 29 2008 Consent to the filing of amicus briefs in support of either party, or neither

party, received from counsel for the respondents.

Feb 15 2008 The time within which to file the joint appendix and petitioners’ brief on

the merits is extended to and including March 26, 2008.

Mar 3 2008 The time within which to file respondents’ brief on the merits is extended to

and including May 27, 2008.

Mar 18 2008 The time within which to file the joint appendix and petitioners’ brief on

the merits is further extended to and including April 9, 2008

Apr 9 2008 Joint appendix filed. Statement of costs received

Apr 9 2008 _ Brief of petitioners Priscilla Summers, et al. filed

Apr 14 2008 Brief amicus curiae of Pacific Legal Foundation in support of neither party

filed.

Apr 15 2008 Brief amici curiae of American Forest & Paper Association, et al. filed

Apr 16 2008 Brief amici curiae of Douglas Timber Operators, et al. filed

Apr 21 2008

Jun 9 2008

Jun 20 2008

Jun 27 2008

Jul 17 2008

Jul 21 2008

Jul 31 2008

Aug 7 2008

Oct 6 2008

Oct 8 2008

The time within which to file respondents’ brief on the merits is further

extended to and including June 20, 2008.

SET FOR ARGUMENT ON Wednesday, October 8, 2008.

Brief of respondents Earth Island Institute, et al. filed.

Brief amicus curiae of California ex rel. Edmund G. Brown, Jr., Attorney

General filed.

Brief amici curiae of Law Professors filed.

CIRCULATED

Reply of petitioners Priscilla Summers, et al. filed. (Distributed)

Record received from U.S.C.A. for the 9th Circuit. (1 envelope)

Record received from U.S.D.C. for the Eastern District of California. (1

box)

Letter and attachment dated October 3, 2008, received from the Acting

Solicitor General. (Distributed).

Argued. For petitioners: Edwin S. Kneedler, Deputy Solicitor General,

Department of Justice, Washington, D.C. For respondents: Matt Kenna,

Durango, Colo.

PETITION

FOR

WRIT OF

CERTIORARI

. an

y: SRE x. a= *-

No. 07-463

Hun the Supreme Court of the Gnited States

PRISCILLA SUMMERS, ET AL., PETITIONERS

i’.

EARTH ISLAND INSTITUTE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PAuL D. CLEMENT

Solicitor General

Connsel of Record

RONALD J. TENPAS

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

KATHERINE W. HAZARD

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

a 4

QUESTIONS PRESENTED

1. Whether the Forest Service’s promulgation of 36

C.F.R. 215.4(a) and 215.12(f), as distinct from the

particular site-specific project to which those regula-

tions were applied in this case, was a proper subject of

judicial review.

2. Whether respondents established standing to

bring this suit.

3. Whether respondents’ challenge to 36 C.F.R.

215.4(a) and 215.12(f) remained ripe and was otherwise

judicially cognizable after the timber sale to which the

regulations had been applied was withdrawn, and

respondents’ challenges to that sale had been voluntarily

dismissed with prejudice, pursuant to a settlement

between the parties.

4. Whether the court of appeals erred in affirming

the nationwide injunction issued by the district court.

(1)

PARTIES TO THE PROCEEDINGS |

The following parties are petitioners in this Court:

Priscilla Summers, District Ranger, Sequoia National

Forest; United States Forest Service; Chuck Conner,

Acting Secretary of Agriculture; and Abigail Kimbell,

Chief of the United States Forest Service. Those par-

ties or their predecessors in office were the appellants/

cross-appellees in the court of appeals.

The following parties are respondents in this Court

and were appellees/cross-appellants in the court of

appeals: Earth Island Institute; Sequoia Forestkeeper;

Heartwood; Center for Biological Diversity; and Sierra

Club.

’ Priscilla Summers has replaced Nancy Ruthenbeck as District

Ranger; Chuck Conner is now Acting Secretary of Agriculture, replac-

ing former Secretary Mike Johanns; and Abigail Kimbell has replaced

Dale Bosworth as Chief of the United States Forest Service.

(11)

TABLE OF CONTENTS

Page

SEES ee MEARS EEE D> PPLE RYN Ue EM ONE me l

re ad bel be he Od Ee a he dns ae 2

Statutory and regulatory provisions involved .............. 2

eR Le ewadesbaleh 2

Reasons for granting the petition ....................005. 8

A. The agency action subject to judicial review

in this case was the Burnt Ridge Project, not

the Forest Service regulations implementing

cab ou OL wed Bicns poe PRM a heb e4 600 nde 9

B. Respondents failed to establish standing to

OF 6s oad caw Sia Cab iA eS CAR i080 oe ee cues 15

(. Respondents’ suit became non-justiciable

when they settled their challenge to the

es ida i akwady peeceseews 20

1). ‘The court of appeals erred in affirming the

nationwide injunction entered by the district

SE Can vg hbbNeeudbe Vi kode) Ki eedasecsvewes 24

ESE ne rng renee rary 2m re eter gy 31

NT 6 5s Gn a cence wpe wen we koe 98 paced Wn la

SS 554.66 55-45) 00 kee bese eee ake sen eeeel 23a

ERI AR RISERS oath ean cer Moose fe 29a

ac ds ba aed pee e en han he ee waco aien 38a

ET. Kall by bv GAKa Gs CTRAK ERO RE aoe ete 68a

IER eter mn aree nr errr eT © 78a

TABLE OF AUTHORITIES

Cases:

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .... 10, 13, 24

Allen v. Wright, 468 U.S. 737 (1984) ............0.. 15, 17

Cases—Continued:

Animal Legal Det. Fund, Inc.y. Ghiekman, 204 Ftd

229 (D.C. Cir. 2000)

Bensman v. USFS, 408 F.3d 945 (7th Cir. 2005)

Brown v. Trustees of Boston Univ. 891 F 2d 337 (st

Cir. 1989), cert. denied, 496 U.S. 937 1.990)

Califono vy. Yamasaki, 442 U.S. 682 (1979)

Calitornia ex rel. Lockyer vy. USDA, No. 3:05-ev-

03508-EDL (N.D. Cal. Nov. 29, 2006)... 0... 30

Citizens for Better Forestry v. USDA, Nos. C 05-1144

PJH, C 04-4512 PJH, 2007 WL 1970096 (ND. Cal.

GE. thet ndaghvhadtdideskindesevecess > 30

Keerhart v. Bowen, 853 F.2d 1582 (10th Cir. 1988),

rev'd on other grounds sab nom. Sullivan v.

Everhart, 494 U.S. 83 (1990)

Forest Sere. Employees for Buvtl. Ethics v. USFS,

408 F. Supp. 2d 916 (N.D. Cal. 2006) ..........0.0.. 30

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs

(TOC), Tne., 528 U.S. 167 (2000)

Fund Democracy, LLC y. SEC, 278 F.3d 21 (D.C. Cir.

Gonzales v. Carhart, 127 S. Ct. 1610 (2007)

Hein y. Freedom from Religion Found., V27 5. Ct.

ED Adnbetndchibbasucdddecusentevestasees 15

Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910 (3d Cir.

Lewis v. Continental Bank Corp. 494 U.S. 472 1990).

Cases Continued: Pape

Lujan v. Defenders of Wildlife, 504 U.S. 555

15, 16, 17, 18, 20

Lujan v. National Wildlife Fed'n, 497 U.S. 871

Massachusetts vy. EPA, 1275. Ct. 1438 (2007)

National Park Hospitality Ass'n v. Department of

the Interior, 588 U.S. 808 (2003)

North Carolina y. Rice, 404 U.S. 244 (1971)

Ohio Forestry Ass'n v. Sierra Cinh, 5233 U.S. 726

Reno vy. Catholic Soe. Servs., Lne., W9ULS. 13

(1993) 10, 12, 13, 24

Sugar Cane Growers Coop. v. Veneman, 289 F 3d 89

I ba bi ccrodanevss cesicietelucsacam IS

Toilet Goods Ass ‘nv. Gardner, 387 US. 158 (1967)

!'nited States v. Mendoza, 464 U.S. 154 194)

l'nited States DoD v. Memhold, 510 U.S. 939 (1998)...

Virginia Soe’y for Human Life. Inc. v. FEC, 208 F.3d

379 (4th Cir. 2001)

Washington Toxics Coalition v. United States Dep't

of the Interior, 457 F. Supp. 2d 1158 (WI). Wash.

GED bed Cada scien bed pundit casncdeatoareemans 30

Whitmore v. Arkansas, 195 US. M9 (1990) 0. i

Winkelman v. Parma City Sch. Dost. 1227'S. Ct. 1994

Wilderness Soe’y v. Rey, No. CV 03.119 M-DWM (D.

Mont. Apr. 24, 2006)

Constitution, statutes, regulations and rule:

US. Const. Art. HT

Administrative Procedure Act, 5 U.S.C. 541 et seg.:

5 U.S.C. 551018)

5US.C. 702

5US.C. 78

Ee ee 3, 12, 14, 28, 79a

5 USC. 70602)

Clean Air Act, 42 U.S.C. 7607(b)0)

Forest Service Decision making and Appeals Reform

Act, Pub. L. No. 102-381, Tit. I], 106 Stat 1419 (16

U.S.C. 1612 note)

$322(a), 106 Stat. 1419

$322), 106 Stat. 1419 2.3, 26, 8la

National Environmental Policy Act of 1969, 42 U.S.C.

National Forest Management Act of 1976.16 USC.

CI da. Uisteluss kd hubiesegreptaccese vs 21

36 CFR:

Section 215.4

Section 215.4(a)

Section 215.12

Section 215.12(f)

Fed. R. Civ. P. 23

Miscellaneous:

Richard H. Fallon, Jr., As Applied and Facial

Challenges and Third-Party Standing, 113 Harv.

H.R. Rep. No. 1980, 79th Cong., 2d Sess. (1946)

S. Rep. No. 752, 79th Cong., Ist Sess. (1945)

Webster's Third New International Dictionary of the

English Language (1993)

a as i Ol a I ee eS Re ee

§n the Supreme Court of the United States

No. 07-463

PRISCILLA SUMMERS, ET AL., PETITIONERS

EARTH ISLAND INSTITUTE, ET AL.

ON PETITION FOR A WRIT ¢ WCE RTIORARI

TO THE UNITEDSTATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of Priscilla Summers,

District Ranger, Sequoia National Forest, et al., respect-

fully petitions for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the Ninth

Circuit in this ease.

OPINIONS BELOW

The amended opinion of the court of appeals (App., L-

fra, 1a-22a) is reported at 490 F.3d 687. The original opin-

ion of the court of appeals is reported at 449 F.3d 954. The

opinion of the district court declaring various regulatory

provisions to be invalid (App., ifr, 38a-67a) is reported at

376 F. Supp. 2d 994. Additional opinions of the district

court (App., “fra, 23a-28a, 29a-37a) are unreported.

(1)

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JURISDICTION

The judgment of the court of appeals was entered on

August 10, 2006. The court of appeals issued an amended

opinion and denied a petition for rehearing on June 8, 2007.

On August 27, 2007, Justice Kennedy extended the time

within which to file a petition for a writ of certiorari to and

including October 5, 2007. The jur:sdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

The following statutory and regulatory provisions are

reproduced in the appendix to this petition: 5 U.S.C. 702,

703, 704, 706; Section 322(a) and (c) of the Forest Service

Decisionmaking and Appeals Reform Act (ARA), Pub. L.

No. 102-381, Tit. IT], 106 Stat. 1419 (16 U.S.C. 1612 note);

and 36 C.F.R. 215.4, 215,12.

STATEMENT

1. In 1992, Congress enacted the Forest Service

Decisionmaking and Appeals Reform Act (ARA), Pub. L.

No. 102-381, Tit. IIT, 106 Stat. 1419 (16 U.S.C. 1612 note).

The ARA states that “the Secretary of Agriculture, acting

through the Chief of the Forest Service, shall establish a

notice and comment process for proposed actions of the

Forest Service concerning projects anc activities imple-

menting land and resource management plans * * * and

shall modify the procedure for appeals of decisions concern-

ing such projects.” ARA § 322(a), 106 Stat. 1419. The ARA

further provides:

Not later than 45 days after the date of issuance of a

decision of the Forest. Service concerning actions re-

ferred to in subsection (a), a person who was involved in

the public comment process under subsection (b)

—* 1. S”)hU ULSlhlU

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;

through submission of written or oral comments or by

otherwise notifying the Forest Service of their interest

in the proposed action may file an appeal.

ARA & 322(c), 106 Stat. 1419. The Forest Service has 1s-

sued regulations that provide, in pertinent part, that the

ARA’s notice-and-comment and administrative-appeal re-

quirements do not apply to projects whose expected erivi-

ronmental impacts are sufficiently slight that neither an

environmental impact statement (EIS) nor an environmen-

ial assessment (EA) is required under the National Envi-

ronmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et

seq. See 36 C.F.R. 215.4(a), 215.12(f).

Respondents filed this suit in the Fastern District of

California in December 2003, naming as defendants the

Forest Service, the Secretary of Agriculture, and two indi-

vidual Forest Service officials (petitioners in this Court).

See Gov't C.A. E.R. 1. The first six claims for relief in re-

spondents’ complaint asserted various challenges to the

legality of the Burnt Ridge Project, a proposed timber sale

in the Sequoia National Forest in California. See id. at 1 1-

26. The Seventh Claim for Relief alleged that

|petitioners| have violated the ARA sections (a) and (¢)

by issuing regulations codified at 36 C.F.R. §& 215.4(a)

and 215.12(f) (2003), which exempt all decisions that are

categorically excluded from NEPA analysis but which

implement forest plans, from notice, comment, and ap-

peal. By doing so, [petitioners] have taken a final

agency action that is arbitrary, capricious, and not in

accordance with law, and which should be set aside un-

der the judicial review provision of the APA | Adminis-

trative Procedure Act], 5 U.S.C. § 702 et seq.

Id. at 26. The remaining eight claims for relief asserted

APA challenges to other Forest Service regulations imple-

menting the ARA. See id. at 27-30.

In March 2004, the Forest Service withdrew its prior

decision to implement the Burnt Ridge Project. See Gov't

C.A. E.R. 89. In July 2004, the parties to the instant suit

entered into a partial settlement agreement. /d. at 89-92.

The Forest Service agreed that it would “not reissue the

Burnt Ridge Timber Sale without first preparing an [EIS]

or [EA] for the project in accordance with NEPA.” /d. at

90. Respondents in turn agreed to “dismiss with prejudice”

their first six claims for relief, which challenged the legality

of the Burnt Ridge Project. /bid. Later that month, the

district court approved the settlement, and respondents’

challenges to the Burnt Ridge Project were accordingly

dismissed. /d. at 92; see App., infra, 39a. Respondents

thereafter pursued the suit as a direct facial challenge to

the Forest Service regulations. See id. at Ta, 39a.

2. The district court held that at least one of the re-

spondents (Heartwood) had standing to sue. The court

relied solely on a declaration dated July 23, 2004, that was

submitted by Jim Bensman, a resident of Illinois and an

employee and member of Heartwood. See App., infra, Ba-

44a, 68a, 77a. In that declaration, Bensman identified a

number of National Forests he had visited in the past, and

he expressed an intention to visit unideutified National For-

ests in Colorado, California, Indiana, and Oregon later that

year. Id. at 69a-70a. He also alleged that he had previously

commented on approximately 1000 Forest Service projects

and that he had appealed (sometimes successfully) certain

Forest Service decisions. /d. at 71a. He stated that after

the regulations at issue here were implemented, there had

heen several projects that he had not been able to appeal.

lind. The only examples he mentioned, however, were ap-

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proximately 20 unidentified timber sales that had been pro-

posed in the Allegheny National Forest in Pennsylvania,

which Bensman said were “in places I have been before and

want to go back and see again,” and “[s]everal” of which

had been approved. /bid. Bensman did not state that he

had concrete plans to visit the site of any such project in the

near future. Nor did he allege that he planned to visit the

immediate area of the Burnt Ridge Project (the only spe-

cific project challenged in the complaint) or that he would

be injured by the project if it was carried out, and he did

not list the Sequoia National Forest as one he had visited in

the past. /d. at 69a.

The district court found Bensman’s allegations suffi-

cient to establish standing (App.. infra, 43a-44a) and re-

jected the government’s contention that Bensman was re-

quired to demonstrate actual or imminent injury from the

Burnt Ridge Project itself:

The Forest Service's contention that Bensman’s affida-

vit is not concrete and particularized because it does not

relate to a specific project in a California national forest

is inapposite. This action challenges the regulations

adopted by the Forest Service in response to the

ARA—not a specific project in a specific national for-

est—and reference to a specific forest is not needed to

ground the contention for purposes of showing injury in

fact.

Id. at 44a. The court also held that respondents’ claims

were ripe for judicial review because “(t]he regulations are

the Forest Service's definitive position on how to best im-

plement the ARA and have been enforced on numerous

occasions.” Jd. at 46a; see id. at 45a-47a.

On the merits, the district court struck down five as-

pects of the regulatory scheme, including 36 C.FLR. 215.A(a)

and 215.12(f). App., injea, 49a-65a. The court subsequently

issued a further order clarifying that its injunction applies

nationwide. /d. at 29a, 31a 38a.

3. The court of appeals affirmed in part and remanded

in part. App., infra, la-22a (amended opinion).

a. The court of appeals held that respondents had

standing to sue. App., infra, 8a-lla. The court found that

the allegations in the Bensman affidavit were sufficient to

establish standing, on the theory that “Bensman’s preclu-

sion from participation in the appeals process may vield

diminished recreational enjovment of the national forests.”

Id. at 9a. The court of appeals also concluded that respon-

dents had alleged sufficient “procedural injury” to demon-

strate standing. /bid. The court noted that respondents

were “unable to appeal the Burnt Ridge Project because

the Forest. Service applied 36 C.F.R. § 215.12(f),” and con-

cluded that “the loss of that right of administrative appeal

is sufficient procedural injury in fact to support a challenge

to the regulation.” /d. at 10a.

bh. The court of appeals held that respondents’ chal.

lenges to most aspects of the regulatory scheme were un-

ripe. See App., :vfra, Lla-15a. The court explained that,

under this Court's precedents, a regulation is not ordinarily

ripe for judicial review before it has been applied to a con-

crete factual setting. /d. at 12a-14a. The court stated that

respondents had “established ripeness only with respect to

36 CPLR. §§ 215.12(f) and 215.4(a),” which had been ap-

plied to the Burnt Ridge Project, the only project referred

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to in the complaint. /d. at 14a.’ With respect to those two

regulations, the court stated:

The parties’ agreement to settle the Burnt Ridge

Timber Sale dispute does not affect the ripeness of [re-

spondents’| challenge to 36 C.F.R. §§ 215.12(f) and

215.4(a). The record remains sufficiently concrete to

permit this court to review the application of the regu-

lation to the project and to determine if the regulations

as applied are consistent with the ARA.

Td. at 15a.

¢. The court of appeals held that 36 C.F.R. 215.4(a) and

215.12(f) are inconsistent with the ARA and are therefore

invalid. App., ‘fra, 15a-20a. The court explained:

The plain language of the ARA states that the For-

est Service “shall” provide for administrative notice,

comment and appeal. The statutory language does not

refer to NEPA. The statute does not provide for any

exclusions or exemptions from its requirement that the

Forest Service provide notice, comment, and an admin-

istrative appeal for decisions implementing Forest

Plans. Accordingly, 36 C.F.R. §§ 215.12(f) and 215.4(a)

conflict with the plain language of the statute.

Id. at 18a.

d. The court of appeals upheld the district court's issu-

ance of a nationwide injunction against enforcement of 36

C.F.R. 215.4(a) and 215.12(f). App., infra, 21a-22a. The

court stated (see id. at 21a) that the nationwide scope of

~ By contrast, the court of appeals found that respondents “hald] net

shown that tne ot her challenged regulations were applied in the context

of the Burrc Ridge Timber Sale or any other specific project. The re-

cord is speculative and incomplete with respect to the remaining revica

tons.” App.. aatra, 14a Via.

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the injunction was “compelled by the text of” 5 U.S.C.

706(2)(A), which authorizes the court in an APA suit to

“hold unlawful and set aside agency action, findings, and

conclusions found to be * * * arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.” The court construed that provision to authorize the

district court in this APA suit to “set aside” on a nationwide

basis the regulatory provisions that the court had found to

be invalid. See App., infra, 21a.

REASONS FOR GRANTING THE PETITION

The Ninth Cireuit in this case recognized that respon-

dents’ challenge to the Forest Service regulations imple-

menting the ARA were not ripe for judicial review before

those regulations had been applied in the concrete setting

of the Burnt Ridge Project, the only specific project chal-

lenged in this case. But the court held that respondents

had standing even though they had not established any

likelihood of injury from the Burnt Ridge Project; that re-

spondents’ suit remained justiciable even though that pro-

ject had been withdrawn and respondents’ challenge to it

had been dismissed pursuant to their settlement with the

government; and that respondents could proceed with a

direct challenge to the regulations themselves divorced

from a challenge to any specific project in which they had

been applied. Those rulings are contrary to bedrock princi-

ples of justiciability established by this Court's decisions.

In addition, the court of appeals affirmed the grant of a

nationwide injunction against application of 36 C.F.R.

215.4(a) and 215.12(f), thereby precluding the government

from applying those regulations to projects not before the

court, including projects in other districts and circuits.

st)

The court of appeals was led into these manifold errors

as a result of its misidentification of the agency action that |

was the proper subject of judicial review. Contrary to the a

Ninth Circuit's understanding, the only reviewable “final

agency action” in this APA suit was the Burnt Ridge Pro-

ject, not the Forest Service regulations (36 C.F.R. 215.4(a),

215.12(f)) themselves.

The decision of the Ninth Circuit conflicts with decisions

of this Court and of other courts of appeals, and it obscures

the distinction between review under the APA and review

under special statutory review provisions that authorize

direct pre-enforcement challenges to agency regulations.

| Ry decoupling respondents’ challenge to 36 C.F.R. 215.4(a)

4 and 215.12(f) from their challenge to the Burnt Ridge Pro-

: ject, the decision below effects dramatic changes in the tim-

ing, context, and venue for challenges to administrative

action under the APA, as well as a dramatic expansion of

the relief that may be awarded in a successfu! suit.

A. The Agency Action Subject To Judicial Review In This Case

Was The Burnt Ridge Project, Not The Forest Service Reg-

ulations Implementing The ARA

| In Lujan v. National Wildlife Federation, 497 U.S. 871

; (1990) (NWF), this Court explained:

Under the ter is of the APA, {a plaintiff] must direct its

attack against some particular “agency action” that

causes it harm. Some statutes permit broad regulations

to serve as the “agency action,” and thus to be the ob-

ject of judicial review directly, even before the concrete

effects normally required for APA review are felt. Ab-

sent such a provision, however, a regulation is not ordi-

narily considered the type of agency action “ripe” for

judicial review under the APA until the scope of the

controversy has been reduced to more manageable pro-

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portions, and its factual components fleshed out, by

some concrete action applying the regulation to the

claimant's situation in a fashion that harms or threatens

to harm him. (The major exception, of course, is a sub-

stantive rule which as a practical matter requires the

plaintiff to adjust his conduct immediately. Such

agency action is “ripe” for review at once, whether or

not explicit statutory review apart from the APA is pro-

vided.)

Id. at 891.

Subsequent decisions of this Court are to the same ef-

fect. In Reno v. Catholic Social Services, Inc., 509 U.S. 43

(1993) (CSS), the Court applied NWF in rejecting, as un-

ripe, the plaintiffs’ challenge to regulations issued by the

Tramigration and Naturalization Service. The Court in CSS

explained that newly promulgated regulations may be ripe

for judicial review outside the context of any particular af-

firmative application by the agency if the regulations

“present | plaintiffs with the immediate dilemma to choose

between complying with newly imposed, disadvantageous

restrictions and risking serious penalties for violation.” /d.

at 57 (citing, inter alia, Abbott Labs. v. Gardner, 387 U.S.

136, 152-153 (1967)). The Court cited NWF, however, for

the proposition that, if such a dilemma is absent, “a contro-

versy concerning a regulation is not ordinarily ripe for re-

view under the [APA] until the regulation has been applied

to the claimant's situation by some concrete action.” Jd. at

58. Noting that the regulations at issue in CSS “impose|d |

no penalties for violating any newly imposed restriction,”

ibid., the Court held that the plaintiffs’ challenge would not

be ripe until the plaintiffs had taken the steps necessary to

cause the regulations to be applied to their own applications

for legalization, id. at 58-59. See also National Park Hos-

pitalily Ass’ v. Department of the Irtertor, 538 U.S. 803,

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808-812 (2003) (N PHA); ef. Ohio Forestry Ass'n v. Sierra

Club, 523 U.S. 726, 732-737 (1998) (holding that facial chal-

lenge to land and resource management plan for a particu-

lar National Forest was not ripe for judicial review, and

that review should instead focus on the application of the

plan's provisions to site-specific projects).

The regulations challenged in the instant case do not

govern primary conduct or require any person outside the

government “to adjust his conduct immediately.” NWF,

497 US. at 891. They are instead procedural regulations

that govern the Forest Service's own process for making

decisions on individual site-specific projects. The court of

appeals recognized that, under NWF and similar prece-

dents, the challenged Forest Service regulations would not

have been judicially reviewable before they were applied to

the Burnt Ridge Project. See App., infra, 12a-l4a. Indeed,

the court held that respondents’ challenge to regulatory

provisions other than 36 C.F.R. 215.4(a) and 215.12(f) was

not justiciable in this suit because respondents “ha{d| not

shown that the other challenged regulations were applied

in the context of the Burnt Ridge Timber Sale or any other

specified project.” App., infra, 14a; see id. at 22a (directing

district court to vacate its injunction with respect to other

aspects of the regulatory scheme). The court of appeals

apparently concluded, however, that, once Sections 215.4(a)

and 215.12(f) had been applied to a particular set of facts,

the district court could engage in the same sort of direct

review of the regulations qua regulations that would take

place under the special statutory review provisions referred

toin NWP.

The court of appeals’ approach reflects a fundamental

misunderstanding of the principles announced in NWF and

in the subsequent decisions discussed above. Although the

Court has described those principles under the rubric of

Pe ee ee ee ee oe ee ee ee eee

“ripeness,” the applicable rules do not simply identify the

time at which judicial review may take place, but rather

reflect and define the “agency action” that is the proper

subject of that review. Under the Court's decisions in NWI’

and subsequent cases, one of two special circumstances -

Le., a special statutory provision authorizing direct review

of agency regulations within a specified period after their

promulgation, or a substantive rule requiring immediate

adjustment of primary conduct under threat of serious

penalties---is ordinarily required in order to “permit broad

regulations to serve as the ‘agency action’ and thus to be

the object of judicial review directly.” 497 U.S. at 891.

Absent one of those circumstances, an agency regula-

tion is not an independently reviewable agency action for

purposes of 5 U.S.C. 704 and 706 even after the regulation

has been applied in the course of making a site-specific de-

cision. Rather, the agency action that is the proper focus of

judicial review is the site-specific decision in which the reg-

ulation has been applied in a concrete context.” Insofar as

~ "The APA Gefines the term “agency action” to inelude “the whole or

a part of an agency rule.” 5 U.S.C. 551(13). Under that definition, 36

C.F.R. 215.4a) and 215.12(f) are “agency actions.” The APA does not

authorize judicial review of every agency action, however, but only of

“[algency action made reviewable by statute and fina: ageney action for

which there is no other adequate remedy in a court.” 5 U.S.C. 704. Ex-

cept when a plaintiff challenges “a substantive rule which as a practical

matter requires the plaintiff to adjust his conduct immediately,” NWF,

4197 U.S. at 891, pre-enforcement review of agency rules is generally un-

available under Section 704 because judicial review of a later conerete

application of arule is an “adequate remedy” for any legal defect in the

regulation. See CSS, 00 US. at 60-51; Toilet Goods Ass'v v. Garduer,

387 U.S. 158, 165 (1967) (where non-compliance with an agency regula-

;

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the legality or rationality of the site-specific decision turns

on the validity of the regulation, the plaintiff in challenging

the site-specific decision may assert that the regulation is

contrary to the governing statute or is otherwise unlawful;

but the agency action that the court ultimately upholds or

sets aside is the site-specific decision rather than the regu-

lation as such.’

tion would result in only a minor sanetion, which could then be chal-

lenged in court, “[s]uch review will provide an adequate forum ‘or

testing the regulation in a concrete situation”).

Moreover, the declaratory and injunctive remedies respondents seeh

are equitabie in nature, and the mpeness doctrine reflects the courts’

traditional reluctance to apply them to administrative determinauons

where the criteria this Court has identified are not present. See CSS,

509 U.S. at 57; Abbott Labs.. 887 US. at 148; 5 U.S.C. 702 right of

judicia! review under the APA dees not affect “the power or duty of the

court to dismiss any action or deny relief on any * * * appropriate

* * * equitable ground”).

" Tf a court of appeals holds that a site-specific agency action is

unlawful because the regulation that purports to authorize it is contrary

to a statute or otherwise invalid, the court's decision will be binding

precedent in future judicial proecedings in that circuit, and it may as a

practical matter restrict the agency's ability to invoke the regulation as

a basis for future site-specific decisions within the e:reuit. To that

extent, a plaintiff can legitimately seek and obtain a judicial ruling that

will affect future agency decisions. Cf. NWF, 497 U.S. at 894 (explain-

ing that ‘udicial review of site-specific actions “may ultimately have the

effect of requiring a regulation, a series of regulations, or even a whole

‘program’ to be revised by the agency in order to avoid the unlawful

result that the court discerns"). That sort of indirect impact on future

agency conduct, however, is simp.y a byproduct of ordinary stare

decisis principles and the common practice of federal agencies, in.

conducting their activities within a particular judicial circuit, of

fotlowing legal rules announced in the prior decisions of the relevant

court of appeals. The procedure countenanced by the court of appeals

in this case, under which a single district judge issued a nationwide

injunction against application of 36 CFR. 215.4(a) and 215.12¢6), raises

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This conclusion is particularly compelling where, as

here, the regulations at issue govern only the administra-

tive procedures to be applied by the agency before render-

ing its decision on a site-specific project that in turn consti-

tutes “final agency action” subject to judicial review.

Whether the procedural regulations will have any impact in

a particular instance cannot be known until the administra-

live proceedings on that project are completed, at which

point the agency's application of the procedural regulation

is merged into the agency’s final decision on the merits.

See 5 U.S.C. 704 (“A preliminary, procedural, or intermedi-

ate agency action or ruling not directly reviewable is sub-

ject to review on review of the final agency action.”). In the

context of this case, for example, the Forest Service's ap-

proval of a particular project might be entirely acceptable

to respondents, or they might conclude that an administra-

tive appeal, even if available, would not be worthwhile. It

therefore is especially clear that regulations such as the

ones at issue here are not ripe for judicial review until the

agency has issued a final decision on a site-specific project

in which the regulations have been applied, and they are

not reviewable except as part of the agency's final decision

on such a project. Thus, contrary to the Ninth Circuit's

ruling, under NWF, CSS, and NPHA, the regulations at

issue here are not reviewable qua regulations, independ-

ently of their application in connection with the agency’s

rendering of a final agency action that is itself the subject

of judicial review. Because respondents consented to dis-

missal of the counts in their complaint concerning the only

site-specific project challenged in the case (see pp. 20-24,

infra), no ripe challenge to the regulations remained before

the courts below. 4

very different practical and doctrinal issues.

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B. Kespondents Failed To Establish Standing To Sue

In order to establish standing to sue in federal court,

“[a] plaintiff must allege personal injury fairly traceable to

the defendant's allegedly unlawful conduct and likely to be

redressed by the requested relief.” Hein v. Freedom from

Religion Found., 127 S. Ct. 2553, 2562 (2007) (quoting

Allen v. Wright, 468 U.S. 737, 751 (1984)); see, e.g., Lujan

v. Defenders of Wildlife, 04 U.S. 555, 560 (1992); Whitmore

v. Arkansas, 495 U.S. 149, 155 (1990). The court of appeals

in this case offered two alternative rationales for concluding

that respondents had satisfied those requirements. See

App., infra, 8a-Ila. Each of those theories lacks merit.

1. As the district court recognized, the Bensman decla-

ration, on which the court of appeals relied in finding that

respondent Heartwood had established standing, did not

allege any impairment of Bensman’s own recreational activ-

ities resulting from the Burnt Ridge Project, the only spe-

cific project before the court. See App., infra, 44a; see also

id. at 68a-77a (Bensman declaration); p. 5, supra. Accord-

ingly, Heartwood lacked standing to bring the only ripe

challenge that was before the courts below—the challenge

to the Burnt Ridge Project. Moreover, neither the district

court nor the court of appeals identified any other project

that (1) was governed by the challenged regulations, (2) was

the subject of a site-specific decision approving the project,

and (3) would result in injury to Bensman or another of re-

spondents’ members who used the area affected by the pro-

ject. Nevertheless, the court of appeals found standing

because “Bensman's preclusion from participation in the

appeals process may yield diminished recreational enjoy-

ment of the national forests.” App., infra, 9a.

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As already explained, however, that broader challenge

was not ripe. And the Bensman declaration would be insuf-

ficient to support standing for that broader challenge in any

event. The court of appeals’ generalized conclusion that

preclusion of administrative appeals “may” yield dimin-

ished enjoyment of “the national forests” generally, without

any allegations concerning the impact of a particular pro-

ject on any of respondents’ members who use the affected

area, fails far short of the requirement in this Court’s cases

that, to satisfy Article ITI, injury must be both “concrete

and particularized” and “actual or imminent.” Defenders of

Wildlife, 504 U.S. at 560; NWF, 497 U.S. at 891. Indeed,

Bensman’s declaration would have been insufficient to es-

tablish standing even if respondents had invoked a special

statutory provision authorizing judicial review of the regu-

lations qua regulations. Although respondents’ standing in

that circumstance would not depend on a showing of likely

injury specifically from the Burnt Ridge Project, it still at

least would have been necessary for respondents to show

that the regulations wouid likely be applied to some specific

project that, if consummated, would impair the enjoyment

of the affected area by identifiable members. Bensman’s

declaration did not identify any such specific project.

That flaw in the court of appeals’ analysis is particularly

apparent, however, once il is understood that the review-

able agency action in this case was the Burnt Ridge Project

itself rather than the challenged Forest Service regulations

qua regulations. Under settled principles, respondents

cannot establish standing to challenge the Burnt Ridge

Project based on likely injury stemming from the applica-

tion of 36 C.F.R. 215.4(a) and 215.12(f) in administrative

proceedings concerning some other project. Any such in-

jury would not be “fairly traceable” to the Burnt Ridge

Project, and it would not be redressed by the relief that

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would naturally follow from a successful challenge to that

site-specific action—i.e., an injunction or declaratory judg-

ment providing that the Forest Service may not implement

the Burnt Ridge Project without first utilizing notice-and-

comment procedures and providing an opportunity for an

administrative appeal. See Allen, 468 U.S. at 756-758; cf.

NWF, 497 U.S. at 891 (holding that a regulation is ordi-

narily ripe for review under the APA when it has been ap-

plied “to the claimant's situation in a fashion that harms or

threatens to harm him”).

2. As an alternative rationale for standing, the court of

appeals held that respondents had suffered a “procedural

injury” because they “are precluded from appealing deci-

sions like the Burnt Ridge Project, and that Project itself,

under the” challenged regulations. App., wfra, 10a. That

theory of standing is also incorrect. Even if respondents

had shown a likelihood that they would have submitted

comments and filed an administrative appeal of the Burnt

Ridge Project if those mechanisms had been available, the

unavailability of those procedural avenues would not sub-

ject any of respondents’ members to judicially cognizable

injury unless the members had a tangible stake in the out-

come of the agency's decision-making process. That tangi-

ble stake would depend in turn on a showing that the mem-

bers’ enjoyment of the affected area would be impaired if

the Burnt Ridge Project were carried out. See Defenders

of Wildlife, 504 U.S. at 572-573.

This Court has stated that a “person who has been ac-

corded a procedural right fo protect his concrete interests

can assert that right without meeting all the normal stan-

dards for redressability and immediacy.” Defenders of

Wildlife, W4 U.S, at 572 n.7 (emphasis added). That princi-

ple does not assist respondents here. As the italicized lan-

guage makes clear, a plaintiff who asserts the deprivation

of a procedural right still must demonstrate that he has a

concrete stake in the substantive agency decision to which

the relevant procedures pertain. See id. al 573 n.8 (explain-

ing that a plaintiff can file suit to vindicate his procedural

rights “so long as the procedures in question are designed

to protect some threatened concrete interest of his that is

the ultimate basis of-his standing”). The concrete injury to

the plaintiff that would result if the project were carried out

would be redressed. at least for the time being, if the

agency's decision is set aside for failure to comply with the

required procedures. The normal requirement of redress-

ability is relaxed only in the further sense that “one living

adjacent to the site for proposed construction of a federally

licensed dam has standing to challenge the licensing

agency's failure to prepare an [ EIS), even though he cannot

establish with any certainty that the | EIS] will cause the

license to be withheld or altered,” and the requirement of

immediacy is relaxed by allowing review “even though the

dam will not be completed for many years.” /d. at 572 n.7.

Thus, if respondents could deuionstrate a likelihood of

injury from the Burnt Ridge Project, they could challenge

the Forest Service’s failure to provide notice-and-comment

and administrative-appeal procedures in connection with

that timber sale. In those circumstances, respondents’

claim to standing would not depend on proof that the For-

est Service's use of the allegedly required procedures would

have led the agency to rescind or modify the Burnt Ridge

Project. See Massachusetts v. EPA, 127 S. Ct. 1438, 1443

(2007) (“A litigant who alleges a deprivation of a procedural

protection to which he is entitled never has to prove that if

he had received the procedure the substantive result would

have been altered.”) (brackets omitted) (quoting Sugar

Cane Growers Coop. v. Veneman, 289 F.3d 89, 94 (D.C. Cir.

2002)). But respondents’ inability to participate in notice-

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and-comment and administrative-appeal procedures con-

cerning the Burnt Ridge Project is not, i and of itself. a

judicially cognizable “injury in fact.” Rather, respondents

must demonstrate a concrete stake in the outcome of the

Forest Service's decision-making process. See ibid. (stat-

ing that a plaintiff who alleges the deprivation of a proce-

dural right “has standing if there is some possibility that

the requested relief will prompt the injury-causing party to

reconsider the decision that allegedly harmed the litigant”)

(emphasis added); Winkelman v. Parma City Sch. Dist.,

127 S. Ct. 1994, 2008 n.3 (2007) (Scalia, J., concurring in the

judgment in part and dissenting in part) (“Under Article

II], one does not have standing to challenge a procedural

violation without having some concrete interest in the out-

come of the proceeding to which the violation pertains.”).

Other circuits have recognized that deprivation of a

“procedural right” is insufficient, standing alone, to confer

Article 11] standing. In Bensman v. USF'S, 408 F.3d 945

(2005), the Seventh Circuit explained that, under Defenders

of Wildlife, “unless the denial of a procedural right

erdanger|s] a separate substantive right of the plaintiff, a

plaintiff may not invoke the federal judicial power to vindi-

cate the denial of that procedural right.” /d. at 952; see id.

at 952-953. The court held in particular that the Forest Ser-

vice’s refusal to consider the merits of the plaintiffs’ admin-

istrative appeals would subject the plaintiffs to judicially

cognizable injury only if they could demonstrate concrete

harm to themselves resulting from the specific projects that

were the subject of those appeals. See id. at 953-963. The

District of Columbia Circuit has similarly recognized that

“[a] party has standing to challenge an agency's failure to

abide by a procedural requirement only if the government

act performed without the procedure in question will cause

a distinct risk to a particularized interest of the plaintiff.”

OE a Pe ee Ci ae eee Pye eee ee ee ss

20)

Fund Democracy, LLC vy. SEC, 278 F.3d 21, 2° (2002); see,

e.g., Animal Legal Def. Fund, Ine. v. Glickman, 204 F.3d

229, 236 (2000) (“|S)tanding to raise a procedural injury

requires that the procedural norm be one ‘designed to pro-

tect some threatened concrete interest’ of the plaintiff.”)

(quoting Defenders of Wildlife, 304 U.S. at 573 n.8). The

Ninth Circuit's decision in the instant case, which held that

respondents’ inability to pursue an administrative appeal of

the Burnt Ridge Project was itself a judicially cognizable

“procedural injury,” App., ifra, 9a-10a, directly conflicts

with those decisions of the Seventh and District of Colum-

bia Circuits.

C. Respondents’ Suit Became Non-Justiciable When They

Settled Their Challenge To The Burnt Ridge Project

Respondents did not show at the outset of thei suit that

carrying out the Burnt Ridge Project was likely to impair

enjoyment of the forest by any of their members, and they

thereby failed to establish their standing to challenge that

site-specific action. But even if respondents had estab-

lished such standing at the outset, their challenge to that

project was dismissed with prejudice and ceased to be justi-

ciable well before the district court ruled on the merits in

this case. In July 2004, while respondents’ complaint was

pending in the district court, the parties entered into a par-

tial settlement of their dispute. The settlement provided

for voluntary dismissal of the first six claims for relief in

respondents’ complaint, which asserted various challenges

to the Burnt Ridge Project, in return for the Forest Ser-

vice’s commitment not to reauthorize the sale without first

preparing an EIS or EA pursuant to NEPA. See Gov't

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C.A. E.R. 90." The district court accepted the settlement

and incorporated it into an order of the court. See id. at 92.

Under 36 C.F.R. 215.4(a) and 215.12(f), the availability

of notice-and-comment and administrative-appeal proce-

dures depends on whether particular actions are subject to

the requirement that an EIS or EA be prepared. Because

the settlement embodies the Forest Service's commitment

ww prepare an EJS or EA before implementing the Burnt

Ridge Project, it effectively ensures that the project will

not go forward in the future without the notice-and-com-

ment and administrative-appeal procedures that respon-

dents contend are required by the ARA. Thus, with respect

to the application of Sections 215.4(a) and 215.12(f) to the

Burnt Ridge Project—the only specific project challenged

in this case—the setulement provided respondents all the

relief they sought.

Despite the parties’ settlement of the Burnt Ridge Pro-

ject dispute, the court of appeals held that respondents’

challenge to 36 C.F.R. 215.4(a) and 215.12(f) remained jus-

* Respondents’ first five claims for relief alleged that the Forest

Service had violated NEPA and had aeted arbitrarily and capriciously

by failing to perform sufficient environmental analysis in connection

with the Burnt Ridge Project. See Gov't C.A. E.R. 19-25. Their sixth

claim for relief alleged that the Burnt Ridge Project violated the Na

tional Forest Management Act of 1976, 16 U.S.C. 1600 ef »eq., because

the sale was inconsistent with Ue governing land management plan.

See Gov't C.A. E.R. 25-26. Kespondents’ complaint did not include a

specific claim for rehef alleging that the Forest Service had vivlated the

ARA by failing w provide notice-and-commert and administrative-

appeal proceedures in connection with the Burnt Ridge Project itself.

Rather, respondents’ challenge to 36 C.F.R. 215Afa) and 215.1211) was

contained in the.r seventh claim for retie!, which asserted a facial attack

on the regulations themselves and identified the issiance of those

regulations as the “final agency action” subject to review under the

APA. See Gov't CLA. FR. 26: pp. 3A sa pen

;

‘

ticiable. App., ixfra, 15a. The court stated that “(t|he re-

cord remains sufficiently concrete to permit this court to

review the application of the regulation|s| to the project

and to determine if the regulations as applied are consistent

with the ARA.” /bid. But because the counts of respon-

dents’ complaint challenging the Burnt Ridge Project were

dismissed, there was no longer any case before the court

(much less a “Case or Controversy” in the Article LI sense)

in which the legality of the application of the regulations to

that project could properly be adjudicated.

Under established mootness principles. moreover, a

claim does not remain justiciable simply because the exist- -

ing record is sufficient to allow an informed decision on the

merits. Rather, the plaintiff must establish a continuing

concrete stake in the outcome of the litigation in order to

obtain relief in court. See, ¢.g., Friends of the Earth, Lue.

v. Lantlaw Enetl. Servs. (TOC), Ine., 528 U.S. 167, 180

(2000) (“The Constitution's case-or-controversy limitation

on federal judicial authority, Art. III, § 2, underpins * * *

{this Court’s} mootness jurisprudence.”); Lewis v. Conti-

nental Bank Corp., 494 U.S. 472, 477 (1990) (“Article III

denies federal courts the power ‘to decide questions

that cannot affect the rights of litigants in the case before

them,” and “|tJhis case-or-controversy requirement sub-

sists through all stages of federal judicial proceedings, trial

and appellate.”) (quoting North Carolina v. Rice, 404 US.

244, 246 (1971)). Once the Forest Service withdrew the

Burnt Ridge Project and agreed to prepare an EIS or EA

with respe © any future implementation of the project

(thereby triggering the availability of the notice, comment,

and appeals procedures), respondents had no concrete

practical stake in the question whether 36 C.F.R. 215.4(a)

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and 215.12(f) could validly have been applied to that agency

action.”

The court of appeals concluded that the settlement

“does not affect the ripeness” of respondents’ challenge.

App., infra, 15a. But the settlement certainly does affect

the justiciability of the only challenge that was even argu-

ably ripe.” If respondents had invoked a statutory provision

authorizing a direct challenge to the regulations within a

specified period, the fact that one application of the rules

had run its course would not be a barrier to the court's res-

olution of the suit, so long as respondents had established

a likelihood of actual or imminent injury from future appli-

cations. But there is no such special statute in this case.

F Nor do 36 C.F.R. 215.4(a) and 215.12(f) constitute “sub-

stantive rule(s] which as a practical matter require[] the

. plaintiff to adjust his conduct immediately.” NWF, 497

: U.S. at 891. Respondents therefore cannot satisfy either of

4 the conditions identified in NWF’ for judicial review of an

agency regulation independent of any concrete application

by the agency. See pp. 9-14, supra. Thus, even if respon-

: dents had established standing to challenge the Burnt

i Ridge Project, their lawsuit ceased to be justiciable when

~ In the settlement, the parties agreed that Counts 7-15 of respon-

dents’ complaint, which asserted facial challenges to various Forest

Service regulations implementing the ARA, were “not affected by this

settlement and that this settlement shall not deprive the Court of

jurisdiction over these claims.” Gov't C.A. E.R. 90. At the same time,

the settlement preserved al] of the government's defenses to those

claims. i. at 91.

ys Se

* The settlement did affect ripeness in the sense that it should have

; made it particularly clear that the only challenge that was even argu-

ably ripe was no longer before the court, and that the broader challenge

to the regulations was now untethered to any conercte application or

injury and so was manifest|y unripe.

Ee ee oa RO I hg Ee we eT eo ee A a ee Oe ele ee ORT Se 8 OR ele ene ey Pe

| the dispute involving that project was settled and respon-

: dents’ challenge to it was dismissed.

. D. The Court Of Appeals Erred In Affirming The Nationwide

. Injunction Entered By The District Court

: The district court concluded that its injunction should

: be given nationwide effect, on the ground that, “|allthough

this action originally challenged the Burnt Ridge Project in

} California, the case evolved from challenging a specific pro-

| ject in a specific forest to challenging regulations, applica-

ble nationwide, promulgated by the Forest Service.” App.,

: infra, 32a, That ruling too is wrong and conflicts with deci

sions of this Court and other courts of appeals.

1. a. The Ninth Circuit's decision authorizes a single 4

district judge in a garden-variety APA suit to exercise the q

same broad power to vacate in their entirety agency regula- J

E tions that Congress only rarely confers upon the District of 3

‘ Columbia Circuit, while freeing the plaintiff from the con- -

; straints (such as a specified appellate-court venue and a ‘

5 short filing period) that are characteristic of special judicial F

review provisions. See, e.g., 42 U.S.C. 7607(b\(1) (petition 3

: for review of an Environmental Protection Agency regula- ;

tion of nationwide applicability under the Clean Air Act i

must be filed in the District of Columbia Circuit within 60 4

days after the rule is published in the Federal Register). §

; Moreover, a nationwide injunction, extending far beyond 7

any projects the plaintiffs have standing to challenge, q

grants the same relief that would be available in a nation- 4

4 wide class action, but without the procedural prerequisites a

: and protections mandated by Federal Rule of Civil Proce-

: dure 23, and without the prospect of nationwide preclusive :

: effect in the government's favor if the named plaintiff loses i

on the merits.

}

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The court of appeals’ affirmance of the nationwide in-

junction against enforcement of 36 C.F'.R. 215.4(a) and

215.12(f), like a number of its other errors, was premised on

that court's erroneous view that the reviewable “agency

action” in this case was the regulations themselves rather

than the specific timber sale to which those rules had been

applied. If the court had correctly identified the Burnt

Ridge Project as the only “final agency action” properly

subject to challenge, the appropriate relief (even if the case

had remained live) could have extended no further than a

declaratory judgment or injunction providing that the pre-

ject could not go forward until the Forest Service had satis-

fied the requirements the court of appeals found to be im-

posed by the ARA.

The court of appeals’ decision also effectively pretermits

the usual process by which recurring legal issues involving

the federal government may be relitigated in different cir-

cuits. In holding that nonmutual coljateral estoppel should

not apply against the United States, this Court has ex-

plained:

A rule allowing nonmutual collateral estoppel against

the government * * * would substantially thwart the

development of important questions of law by freezing

the first final decision rendered on a particular legal

issue. Allowing only one final adjudication would de-

prive this Court of the benefit it receives from permit-

ting several courts of appeals to explore a difficult ques-

tion before this Court grants certiorari.

United States v. Mendoza, 464 U.S. 154, 160 (1984); see id.

at 163 (explaining that the Court's preferred approach “will

better allow thorough development of legal doctrine by

allowing litigation in multiple forums”).

mews 2 Teh a. rf. + ee ee ae ee Te ee Se a ee ee Cat ae

The court of appeals’ approach in this case reimtroduces

the same practical difficulties that this Court in Mendoza

sought to avoid.’ ‘The Ninth Circuit's affirmance of the na-

4 tionwide injunction has forced the government either to

o forgo implementation of 36 C.F.R. 215.4(a) and 215.12(f)

3 altogether, or to seek this Court's review of the first court

of appeals decision that has addressed the validity of those

regulations.” Except where Congress has enacted a special

* [ny support of its conclusion Uiat the injunction in this case should

be given nationwide effert, the distriet court quoted with evident

approval the Third Circuit's stazement that “in most situations, a far

‘ better approach for an administrative agency would be to accept the

7 first ruling of a court of appeals on a particular point or else seek rever-

e. sal in the Supreme Court or a statutory change by Congress. To shop

ina number of courts of appeals im hopes of securing favorabe decisions

is not only wasteful of overtaxed appellate resources but dissipates

agency energies as weil.” App., infra, 32a (quoting Hi-Craf Clothing

Co. v. NLRB. 660 F.2d 910, 912 n.1 (3d Cir. 1981). The Third Circuit's

discussion in Hi-Craf Clothing Co. concerns the precedential effect of

court of appeals decisions, not the proper scope of a district court

4 injunction. In any event, it is clearly inconsistent with, and has been

E~ superseded by, this Court's intervening decision in Mendoza.

~ The government has not petitioned for certiorar! at this time on the

merits question whether 36 C.F.R.215.4(a) and 215. 12¢f )are consistent

with the ARA. Respondents’ current challenge to those regulations is

non-justieiable, the nationwide injunction was im any event improper,

and no other court of appeals has yet addressed the merits issue.

Indeed, the Ninth Cireuit’s decision in this case, if left unreviewed,

4 would prevent any other court of appeals from considering the question.

% The analysis of the merits issue by the courts below, however, is

; seriously flawed. The ARA directs the agency to “establish a notice and

comment process for proposed actions of the Forest Service concerning

projects and activities implementing land and resource management

plans,” ARA $ 322(a), 106 Stat. 1419, eet 4 provides a right of adminis-

Z trative appeal to any person who vee participated in the pubslic-

5 comment process, ARA § 3221¢), 106 Stat. 1419. The statute does not

3 expressly state that the notice-and commentand administrative appeal

provision that authorizes a single lower court to vacate a

regulation and resolve such questions on a nationwide basis,

this Court's precedents make clear that the government

should not be put to that choice.

b. The court of appeals apparently believed that a na-

tionwide injunction was not only permitted, but required, in

9 this case. In the court's view, such an injunction is com-

q pelled by the APA, because 5 U.S.C. 706 provides that

: “(t}he reviewing court shall * * * (2) hold unlawful and set

aside agency action, findings, and conclusions found to

be—(A) arbitrary, capricious, an abuse of discretion, or

| otherwise not in accordance with law.” See App., infra, 21a.

3 ‘That reasoning is plainly incorrect. In the first place, as

E explained above, the final agency action that is the proper

subject of judicial review in a case such as this is the agency

decision approving a site-specific project, not the regulation

itself. If the court finds that a regulation on which the

agency relied in rendering that decision is unlawful (and

that its application was not harmless error), the proper

relief is for the court to hold the site-specific decision un-

a procedures must apply te a// such projects, and Congress did not likely

2 intend for the ARA’s procedural requirements to apply inflexibly to

,* every action, no matter how minor, that might be characterized as

b “implementing land and resource management plans.” Indeed. tre

distriet. court acknowledged that “[t}he ARA certainly permits exeiusion

of environmentally insignificant projects from the appeals process. For

example, actions such as maintaining Forest Service buildings or mow-

ing ranger station lawns need not be subject to the notice, comment,

and appeal procedures.” App.. ‘afra, 5la-52a; see Gov't C_A. E.R. 152-

154. If the ARA permits the Forest Service to distinguish between

environmentally significant and insignificant projects, and to exempt

2 the latter from the notiee-and -comment and administrative-appeal pro-

§ cedures mandated by the statute, nothing in the text or purposes of the

ARA precludes the agency from incorporating the pre-exist.ng distinc-

tion between projects that require an ELS or EA and those that do not.

ae ee ee a ee Ee, ee Ne ee OP ee Pe ER we Ae. RT TY a Te PT ee ae ae

lawful (7.¢., to “hold unlawful” the relevant “agency action”)

hecause it rests on the regulation the court found to be in-

valid, not to go beyond the confines of the case and invali-

date the regulation in all of its potential applications to

: other site-specific decisions.

In any event, the provision in 5 U.S.C. 706(2) for a re-

viewing court to “hold unlawful and set aside” agency action

does not mean that a court must enter an injunction that

renders a regulation a nullity on a nationwide basis.

Rather, the court should “set aside” the regulation only in

the sense of putting it to one side and removing it from con-

sideration as a lawful basis for sustaining the final agency

action that the plaintiff challenges or the application of that

action to the plaintiff. See Webster's Third New Interna-

tional Dictionary of the English Language 2077 (1993)

(“set aside”) (definition 1: “to put to one side: DISCARD”;

definition 3: “to reject from consideration”). Furthermore,

where, as here, no special statutory review provision ap-

plies, the proper form of proceeding under the APA is a suit

for declaratory or injunctive relief. See 5 U.S.C. 708 (in the

absence of a special statutory review procedure relevant to

the subject matter, the form of proceeding under the APA

is “any applicable form of legal action, including actions for

declaratory judgments or writs of prohibitory or mandatory

injunction or habeas corpus, in a court of competent juris-

diction”); 5 U.S.C. 704. Declaratory and injunctive reme-

dies are equitable and therefore discretionary in nature.

See CSS, 509 U.S. at 57 (quoting Abbott Labs., 387 U.S. at

148). Indeed, the APA’s very reference to actions for “de-

claratory judgments” makes clear that xo injunction—

much less a nationwide injunction is in any sense com-

pelled by the APA when agency action is held unlawful.

See H.R. Rep. No. 1980, 79th Cong, 2d Sess. 42 (1946) (re-

ferring to possibility of suits for declaratory relief to “de-

s - 7 . o 2 5 * 4 PM, = f * - ~~ I <

Se EE oe ee ee eee ee LE AOS ga ee I eR a ee EN ee eG

ee, ee a eee IY Pee ee en ENE. PS OL ee ee ee Ne ee ee

termine the validity or application of a rule or order”); see

also S. Rep. No. 752, 79th Cong., Ist Sess. 26 (1945).

Rather, equitable relief must be tailored to the particular

. final agency action and parties before the court.”

q 2. This Court has made clear that “injunctive relief

should be no more burdensome to the defendant than nec-

: essary to provide complete relief to the plaintiffs.” Cati-

4 fano v. Yamasakn, 442 U.S. 682, 702 (1979); see also United

States Dep't of Defense v. Meinhold, 510 U.S. 939 (1993)

(granting stay of Armed-Forces-wide injunction, except as

3 to individual plaintiff). Similarly in a variety of contexts,

4 other courts of appeals have recognized that the sort of

; categorical injunction issued by the district court in this

case, which applies nationwide and without regard to par-

ticular applications of 36 C.F.R. 215.4(a) and 215.12(f) or to

whether such applications are likely to injure respondents’

members, is an inappropriate exercise of a court's equitable

powers. See, e.g., Virginia Soc’y for Human Life, Ine. v.

FEC, 268 F.3d 379, 393 (4th Cir. 2001) (holding that. nation-

wide injunction prohibiting application of challenged regu-

lations to non-parties was inappropriate because, inter alia,

“|tlhe broad scope of the injunction has the effect of pre-

cluding other circuits from ruling on the” relevant legal

4 question, in contravention of the principles announced by

* Accordingly, even where, unlike here, a regulation is ripe for pre-

enforcement review because it governs primary conduct and would

require a regulated party either to change its behavior immediatety or

to risk serious penalties, the regulation should be declared unlawful or

enjoined only as to the party before the court. See. e.g, Virgina Sor'y

Jor Human Life, ne. v. FEC, 268 F.3d 379, 392-394 (4th Cir. 2001). Cf.

Gonzales ¥. Carhart, 1227S. Ct. 1610, 1689 (2007) (noting that “{a]s

applied challenges are the basie building blocks of constitutional ad-

judication”) (quoting Richard Ii. Fallon, Jr, As-Applied and Focal

Challenges and Third-Party Standing, 13 Harv. L. Rev. 1321, 132s

(20005),

DAE Pe Ps ee Be) eg ee Pe ee ee SEY ee ee

a ie

Cg ee a eS ee

ee a Te Sit eel BPS Pe RT ny Sgt Se ee el es Oe ee er ee re

this Court in Mendoza); Everhart v. Bowen, 858 F.2d 1582,

1539 (10th Cir. 1988) (“Absent a class certification, the dis-

trict court should not have treated the suit as a class action

by granting statewide injunctive relief, and aecordingly

should have tailored its injunction to affect only those per-

sons over whom it has power.”) (citations, brackets, and

internal quotation marks omitted), rev'd on other grounds

sub nom. Sullivan v. Everhart, 494 U.S. 88 (1990); Brown

v. Trustees of Boston Univ., 891 F.2d 337, 361 (1st Cir.

1989) (holding injunction overbroad insofar as it extended

beyond that necessary to redress the plaintiff's injury, and

explaining that “|o)rdinarily, classwide relief * * * is ap-

propriate only where there is a properly certified class”),

cert. denied, 496 U.S. 937 (19990).

Moreover, the mode of proceeding approved by the

court of appeals in this case is becoming commonplace in

environmental litigation within the Ninth Circuit. See Or-

der at 4, Wilderness Soe'y v. Rey, No. CV 08-119-M-DWM

(D. Mont. Apr. 24, 2006) (nationwide injunction against an-

other ARA regulation); Forest Serv. Employees for Envtl.

Ethics v. USFS, 408 F. Supp. 2d 916, 921-922 (N.D. Cal.

2006) (allowing challenge to ARA regulation to proceed ,

even after plaintiffs’ challenge to specific timber project ‘

was dismissed as moot); Washington Toxics Coalition v.

United States Dep't of the Interior, 457 F. Supp. 2d 1158,

1163-1164, 1170-1175, 1200-1201 (W.D. Wash. 2006) (adjudi-

cating pre-enforcement challenge to regulations jointly

promulgated by Fish and Wildlife Service and National :

Marine Fisheries Service, and enjoining agencies from im- |

plementing those rules, apparently on nationwide basis):

Citizens for Better Forestry v. USDA, Nos. C 05-1144 PJH,

C 04-4512 PJH, 2007 WL 1970096, at *19 (ND. Cal. July 3,

2007) (issuing nationwide injunction against implementa- 5

tion of Forest Service planning regulations, in challenge

brought to regulations apart from any specific application

to a project); Order at 5-6, California ex rel. Lockyer v.

USDA, No. 3:05-ev-03508-EDL (N.D. Cal. Nov. 29, 2006)

(confirming that earlier decision vacating Forest Service

rule and reinstating prior agency regulation governing

roadless areas in National Forests has nationwide effect).

Because the Ninth Circuit’s decision in this case con-

flicts with decisions of this Court and other courts of ap-

peals, and manifests a growing pattern within the Ninth

Circuit, review is warranted as to the scope of injunctive

relief, as well as standing, ripeness, and mootness as dis-

cussed above. -

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Pau. D. CLEMENT

Solicitor General

Rowanod. TENPAS

Acting Assistant Alioruey

General

EDWIN S. KNEEDLER

Deputy Solicrtar General

MALcoLm L. Srewankr

Assistant to the Solietor

General

KATHERINE W. TTazanp

Attorney

OCTOBER 2007

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 05-16975, 05-17078

4 EARTH ISLAND INSTITUTE; SEQUOIA FORESTKEEPER,

4 A CALIFORNIA NON-PROFIT CORPORATION;

4 HRARTWOOD, AN INDIANA NON-PROFIT CORPORATION;

CENTER FOR BIOLOGICAL DIVERSITY, A NEW MEXICO

NON-PROFIT CORPORATION; SIERRA CLUB,

PLAINTIFFS-APPELLEES

NANCY RUTHENBECK; UNITED STATES FOREST

SERVICE; MIKE JOHANNS;”* DALE BosworTH,

DEFENDANTS-APPELLANTS

EARTH ISLAND INSTITUTE; SEQOUIA FORESTKEEPER.

A CALIFORNIA NON-PROFIT CORPORATION;

HEARTWOOD, AN INDIANA NON-PROFIT CORPORATION;

CENTER FOR BIOLOGICAL DIVERSITY, A NEW MEXICO

NON-PROFIT CORPORATON; SIERRA CLUB,

PLAINTIFFS-APPELLANTS

NANCY RUTHENBECK; UNITED STATES FOREST

| SERVICE; ANN M. VENEMAN; DALE BosworTu,

DEFENDANTS-APPELLEES

” Naney Ruthenbeck is substituted for Del A. Pengilly pursuant to

Fed. R. App. P. 43(¢2).

” Mike Johanns is substituted for Ann M. Veneman pursuant to Fed.

R. App. P. 434¢2).

(la)

“ . - , Pm ye

NE SOS eee Oe See CS ee Pe Ce ee A EP Ba TT TEN ee ee ee ee

Filed: Aug. 10, 2006

Amended: June 8, 2007

Before: MARY M. SCHROEDER, Chief Judge, SUSAN

P. GRABER, Cirenit Judge, and KEVIN THOMAS

Durry, ” Senior Judge.

ORDER

The panel has voted to deny the petition for re-

hearing. Chief Judge Schroeder and Judge Graber have

voted to deny the petition for rehearing en banc, and

Judge Duffy has so recommended.

The full court has been advised of the petition for re-

hearing en banc, and no judge of the court has requested

a vote on it.

The petitions for rehearing and rehearing en bane

are DENIED.

Plaintiffs-Appellees’ motion for clarification with re-

gard to the applicability of the opinion to both 36 C.F.R.

§§ 215.12(f) and 215.4(a) and inapplicability of the

opinion to 36 C.F.R. § 215.18(b)(1) is GRANTED.

The opinion at Earth Island Institute v. Ruthenbeck,

459 F.3d 954 (9th Cir. 2006), is amended and, in the

interest of clarity, the attached amended opinion is

substituted in its place.

No further petitions for rehearing or rehearing en

banc may be filed.

“The Honorabie Kevin Thomas Duffy, Senior Judge, United States

District Court for the Southern District of New York, sitting by

des .gnation.

‘

;

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Sel

AMENDED OPINION

SCHROEDER, Chief Judge.

I. Overview

This is a government appeal from a district court

judgment enjoining Forest Service regulations that

govern review of decisions implementing forest plans, on

the ground that the regulations were manifestly con-

trary to the governing statute. The Ferest Service

promulgated the challenged regulations put suant to the

Forest Service Decisionmaking and Appeals Reform

Act (“ARA”), Pub. L. 102-381, tit. 111, § 322. 106 Stat.

1419 (1992) (codified at 16 U.S.C. § 1612 note). Ina

cross-appeal, the environmentalist plaintiffs Earth Is-

land Institute et al. challenge the four regulations the

district court held were valid. The statute pertains to

procedures relating to public comment, notice, and ad-

ministrative appeal of proposed forest management ac-

tions. The government raises standing and ripeness

issues. We agree with the district court that plaintiffs

have established standing. But because only two aspects

of the regulations, 36 C.F.R. §§ 215.12(f) and 215.4(a)

have actually been applied to a proposed project, we

hold that only those regulations are ripe for review. We

affirm the district court’s judgment that 36 C.F.R.

$§ 215.12«f) and 210.4 (a) conflict with the Appeals Re-

form Act and affirm the nationwide injunction barring

their application. We remand the judgment and injun-

ction with respect to the remaining regulations to the

district court with instructions to vacate for lack of a

controversy ripe for review.

IT. Background

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Plaintiffs, Earth Island Institute, Sequoia Forestkee-

per, Heartwood, Inc., Center for Biological Diversity,

and the Sierra Club (collectively “Earth Island”) are

non-profit environmental organizations. To establish

their standing, plaintiffs rely on the declaration of Jim

Bensman, an employee and member of Heartwood. Ac-

cording to his affidavit, Bensman has been using the Na-

tional Forests for over 25 years, and has visited Nationa!

Forests in California, including Klamath, Shasta, Six Ri-

vers and Trinity.

Bensman declared that he planned to return to Calif-

ornia in August 2004 and Oregon in October 2004. He

asserted that his interest in the biological health of the

forest, as well as his recreational interest, is harmed

when development occurs in violation of law or policy.

Bensman specifically stated that if an appeal option

were available to him on projects that are categorically

excluded from appeal. he would exercise that nght of

appeal. He also alleged personal and procedural injuries

under each challenged regulation.

The defendant, the United States Forest Service,

prior to 1992, provided a post-decision administrative

appeals process, 36 C.F.R. pt. 217, for agency decisions

documented in a “decision memo,” “decision notice,” or

“record of decision.” See 54 Fed. Reg. 3342 (Jan. 23,

1989); Heartwood, Tne. vr. US. Forest Serv., 316 F.3d

694, 696 (7th Cir. 2003). In March 1992, the Forest Ser-

vice proposed a new regulation that wo-'! have elim-

inated post-decision administrative appeais for all de-

cisions except those approving forest plans or amend-

ments or revisions to forest plans. See 57 Fed. Reg. 10,

444 ‘Mar. 26, 1992). The 1992 proposal would have

replaced post-decision administrative appeals with

Bid

pre-decision notice and comment procedures for pro-

posed projects on which the Forest Service had com-

pleted an Environmental Assessment (“EA”) and a

finding of no significant impact (“FONSI”), in accor-

dance with applicable provisions of the National Envi-

ronmental Policy Act of 1969 (“NEPA”). Essentially,

the proposal provided a categorical exclusion from no-

tice, comment and appeal for projects the Forest Service

deemed environmentally insignificant.

The 1992 proposal was greeted with considerable

protest, and environmental groups decried the loss of

administrative review. Congress, in response, enacted

the ARA. Pub. L. No. 102-381, tit. IIT § 322, (codified

at 16 U.S.C. § 1612 note). Among other things, the ARA

required the Forest Service to establish an administra-

live appeals process with opportunity for notice and

comment. The ARA provides in material part:

(a) IN GENERAL.—In accordance with this section,

the Secretary of Agriculture, acting through the

Chief of the Forest Service, shall establish a notice

and comment process for proposed actions of the

Forest Service concerning projects and activities

implementing land and resource management plans

developed under the Forest and Rangeland Renew-

able Resources Planning Act of 1974 (16 U.S.C.

$ 1601 ef seq.) and shall modify the procedure for

appeals of decisions concerning such projects.

ARA § 322(a).

After a series of challenges to regulations promul-

gated pursuant to the ARA, see Heartwood, Tne., 316

F.3d 694, the Forest Service reinstated the pre-1992

notice, comment and administrative appeal procedure as

an interim measure until the Forest Service issued a fi-

nal regulation implementing the ARA. See 68 Fed. Reg.

33,982, 33,586. On June 4, 2003, the Forest Service pub-

lished a final rule revising the notice, comment, and ap-

peal procedures for “projects and activities implemen-

ting land and resource management plans on National

Forest System lands.” 68 Fed.Reg. at 33,582 (June 4,

2003) (“2003 Rule”).

On June 5, 2003, the Forest Service published the

final implementing procedures for National Environ-

mental Policy Act Documentation Needed for Fire Man-

agement Activities (“Fire CE”), 68 Fed. Reg. 33,814-24

(2003) (codified at Forest Service Handbook 1909.15, ch.

30, § 31.2(10), (11)). This action created a new cutegory

of projects, fire rehabilitation activities on less than

4,200 acres, which could be excluded from EA and En-

vironmental Impact Statement (“EIS”) analysis, and

exempted from notice, comment and appeal under the

challenged regulations. Salvage timber sales of 259

acres or less (“Timber Sale CE”) were also designated

as categorical exclusions on July 29, 2003. 68 Fed. Reg.

44,598-608 (2003) (codified at Forest Service Handbook

1909.15, ch. 30, § 31.2(12), (13), (14).

On September 8, 2003, the Forest Service issued its

Burnt Ridge Project decision memo approving the tim-

ber sale and treatment of 238 acres of post-fire forest

area. The Burnt Ridge Project timber sale proposal was

prepared pursuant to the Sierra Nevada Forest Plan

Amendment Record of Decision, stemming from the

2002 MeNally fire. The Burnt Ridge Project area is lo-

cated on the Hot Springs Ranger District of Sequoia Na-

tional Forest, approximately 8 air miles from California

Hot Springs, California. In the summer of 2002, a hu-

(

;

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free

;

man-caused fire known as the McNally Fire burned app-

roximately 150,000 acres of forest and chaparral pri-

marily within the Sequoia National Forest. Between

January and March 2003, the Sequoia National Forest

sent out three scoping notices pursuant to NEPA, for

three separate post-fire salvage logging projects. Each

of the adjacent projects was planned as a result of the

McNally fire, and proposed identical or highly similar

logging prescriptions. The Burnt Ridge Project, as app-

roved by the Forest Service decision memo, would have

resulted in the logging of approximately 238 acres of

burned forest for sale as timber. The decision memo

applied the categorical exclusion provisions of 36 C.F.R.

§§ 215.12(f) and 215.4(a), The decision expressly states

that “this project is not subject to appeal because it in-

volves projects or activities which are categorically

excluded from documentation in an environmental im-

pact statement or environmental assessment.” Even-

tually, after this litigation was instituted, the parties

settled that challenge and the Forest Service withdrew

the Burnt Ridge Project.

On December 1, 2003, Earth Island filed a complaint

against the Forest Service, challenging the 2003 Rule as

applied to the Burnt Ridge Project, and bringing facial

challenges to nine provisions of the 2003 Rule. The

Burnt Ridge Project decision memo was issued under

provisions which the Forest Service claim categorically

exclude the project under the challenged regulations

in this case from documentation in an EA or EIS, and

thereby from administrative notice, comment, and ap-

peal.

The district court invalidated five challenged regu-

lations and upheld four regulations, Farth Island ».

FES eee ne ee EL TR MET ee PA, Pie Fk ee eR ie shee rg Yh Meee Fh Pee ee a ae BM Pee er, Sea

Pengilly, 876 F. Supp. 2d 994 (E. D. Cal. 2005), and iss-

ued a nationwide injunction against the application of

the invalid regulations. This appeal and cross-appeal

followed.

III. Standing

Earth Island argues that plaintiffs in this case had

standing on the basis of the personal and procedural in-

juries documented in the Bensman affidavit because

their aesthetic interests in the national forests are

harmed by the regulations and, more specifically, they

contend that their procedural interests in participating

in the administrative notice, comment, and appeal pro-

cess are harmed. The government argues that plaintiffs

have suffered no cognizable injury in faet with respect

to the challenged regulations, because the regulations

have not yet been applied.

To satisfy Article III standing requirements, a

plaintiff must show that: (1) plaintiff has suffered “inju-

ry in faet” that is (a) concrete and particularized; and (b)

actual or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged action

of the defendant; and (3) it is likely, as opposed to

merely speculative, that the injury will be redressed by

a favorable decision. Friends of the Earth, Inc. v. Laid-

law Knetl. Servs., 528 U.S. 167, 180-81, 1208. Ct. 693,

145 L. Ed. 2d 610 (2000) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 455, 560-61, 112 S. Ct. 2130, 119 L.

Fd. 2d 351 (1992)).

The parties do not dispute that an organizational

plaintiff has standing to bring suit on behalf of its mem-

hers “when its members would otherwise have standing

to sue in their own right, the interests at stake are ger-

mane to the organization's purpose. and neither the

EP ee ey Rn SS PI AE See, Se A ee ee a ee Ge Sg aye ee eee eee meee eee eee

claim asserted nor the relief requested requires the par-

ticipation of individual members in the lawsuit.” /d. at

181, 1208. Ct. 693.

Aesthetic and environmental interests generally are

cognizable injuries in fact, “|b jut the ‘injury in fact’ test

requires more than an injury to a cognizable interest. It

requires that the party seeking review be himself among

the injured.” Sierra Club v. Morton, 405 U.S. 727, 735-

36, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). An affiant’s

“some day” intentions to return to an area that will be

affected by a project do not support a finding of “actual

or imminent injury” unless the affiant has specific plans

to return to the area. Lujan v. Defenders of Wildlife,

504 U.S. at 564. 112 S. Ct. 2130.

In this case, plaintiffs persuasively argue, and the

district court properly concluded, that Bensman's pre-

clusion from participation in the appeals process may

yield diminished recreational enjoyment of the national

forests.

Earth Island has also alleged sufficient procedural

injury to support standing, relying on the argument that

the ARA is a procedural statute giving rise to a proce-

dural injury within the “zone of interests” Congress in-

tended to protect. These are procedural regulations

governing the opportunity for public comment. The

ARA does not address any substantive Forest Service

program and governs only the process. Procedural and

informational injuries may be the basis for injury in fact

for standing purposes. See City of Davis v. Coleman,

521 F.2d 661, 671 (Mh Cir. 1975) (“The procedural injury

implicit in agency failure to prepare an EIS [is] the

creation of a risk that serious environmental impacts

wil] be overlooked is itself a sufficient ‘injury in fact’ to

_—s ee

10a

support standing . . . .”). Because “NEPA is ess-

entially a procedural statute designed to ensure that en-

vironmental issues are given proper consideration in the

decision making process,” injury alleged to have oc-

curred as a result of violating this procedural right con-

fers standing. /daho Conservation League v. Mumma,

956 F.2d 1508, 1514 (9th Cir. 1992) (quoting Trustees for

Alaska v. Hodel, 806 F.2d 1378, 1382 (9th Cir. 1986)); see

also United States v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 U.S. 669, 93 S. Ct.

2405, 37 L. Ed. 2d 254 (1973); Friends of the Rarth v.

U.S. Nawy, 841 F.2d 927, 931 (9th Cir. 1988) (noting that

“(t}his court has long recognized that failure to follow

procedures designed to ensure that the environmental

consequences of a project are adequately evaluated is a

sufficient injury in fact to support standing”).

Earth Island was unable to appeal the Burnt Ridge

Project because the Forest Service applied 36 C.F.R.

§ 215.12(f); the loss of that right of administrative ap-

peal is sufficient procedural injury in fact to support a

challenge to the regulation. Plaintiffs in this case are

“injure[d] . . . in the sense contemplated by Con-

gress,” Mumma, 956 F.2d at 1516; because Plaintiffs are

precluded from appealing decisions like the Burnt Ridge

Project, and that Project itself, under the 2003 Rule.

The ARA is entirely procedural, and Congress contem-

plated public involvement in the administrative notice,

comment, and appeal process.

Plaintiffs have satisfied the remaining standing re-

quirements. The deprivation of the procedural right of

administrative notice, comment, and appeal is “fairly

traceable” to the Forest Service's regulations. A favor-

able decision invalidating the regulation would redress

Di te i a

FER a ee Pe Oe ee a ee ee ee

ae ee eee

Poe eee eS ee

Se ee

IS I wt PR TF Re Be OD gh) Ey, aie BE PIE gS Bel, ee eta ie ee OO

lla

Farth Island's injury. Accordingly, Earth Island has es-

tablished standing on the basis of both personal and pro-

cedural injury.

IV. Ripeness

The Forest Service argues that the challenges to the

regulations are unripe because they have not yet been

applied in a specific context and that this court should

decline to decide the challenge where the record is in-

complete. Earth Island argues that no further record

development is needed because the challenged regula-

tions are final agency action and present purely legal

questions.

“The jurisdiction of federal courts is defined and lim-

ited by Article III of the Constitution. In terms relevant

to the question for decision in this case, the judicial

power of federal courts is constitutionally restricted to

‘cases’ and ‘controversies. Flast v. Cohen, 392 U.S. 83,

94, 88S. Ct. 1942, 20 L. Ed. 2d 947 (1968). Courts must

refrain from deciding abstract or hypothetical contro-

versies and from rendering impermissible advisory opin-

ions with respect to such controversies. See id. at 96, 88

S. Ct. 1942. “[A] federal court has neither the power to

render advisory opinions nor to decide questions that

cannot affect the rights of litigants in the case before

them. Its judgments must resolve a real and substantial

controversy admitting of specific relief through a decree

of a conclusive character, as distinguished from an

opinion advising what the law would be upon a hypo-

thetical state of facts.” Preiser v. Newkirk, 422 U.S.

395, 401, 95S. Ct. 2330, 45 L. Ed. 2d 272 (1975) (internal

quotation marks omitted). An advisory opinion results

if the court resolves a question of law that is not

presented by the facts of the case. See, e.g. In re

l2a

Michaelson, 511 F.2d 882, 893 (9th Cir. 1975) (“[I]t

would be constitutionally improper for us to reach this

question since the issue lacks the necessary facts to

make it conerete.”).

Ripeness is a prudential doctrine intended, in part, to

prevent judicial review of legal issues outside the limits

of Article III cases and controversies. Plaintiffs rely on

a selective reading of Abbott Laboratories v. Gardner, in

which the Supreme Court established a presumption in

favor of ripeness for regulations that constitute final ag-

ency action. 387 U.S. 186, 140, 87S. Ct. 1507, 18 L. Ed.

2d 681 (1967) (overruled on other grounds by Califano

v. Sanders, 430 U.S. 99, 97S. Ct. 980, 41 L. Ed. 2d 192

(1977)). In that pre-enforeement challenge to FDA reg-

ulations, the Supreme Court held the regulations were

ripe for review because the challenge presented a purely

legal question: whether the FDA Commissioner had ex-

ceeded his rulemaking authority. The legal issue could

be resolved on the record as it stood, without reference

to more specific facts. Abbott Laboratories also estab-

lished a two-part ripeness test: first. a reviewing court

must ask if the issues are fit for judicial decision; and se-

cond, a reviewing court considers the hardship to the

parties of withholding review. /d. at 149, 87S. Ct. 1507.

We are persuaded by the Forest Service's reliance on

Toilet Goods Association, Inc. v. Gardner, 387 U.S. 138,

$7 S. Ct. 1520, 18 L. Ed. 2d 697 (1967), where the Su-

preme Court held that a pre-enforcement challenge to

FDA regulations was premature. In that case, the peti-

tioners challenged regulations authorized by the Color

Additive Amendments that would allow the FDA Com-

missioner to revoke product certifications if the agency

was not given free access to color additive formulas and

eS Re oe

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manufacturing facilities and processes. In Toilet Goods,

the regulations were final agency action and the ques-

tion presented was purely legal. Jd. at 163, 87 S. Ct.

1520. Nonetheless, the Supreme Court held that the is-

sues failed the first part of the Abbott Laboratorres test.

The issues were not fit for judicial decision because the

regulations’ effects were speculative and the record was

incomplete. /d. at 163-64, 87 S. Ct. 1520. The Court also

held under the second Abbott Laboratories inquiry that

the challenge was unripe because the situation was not

one “in which primary conduct [was] affected.” /d. at

164,

The Supreme Court also emphasized the need for

factual context in Lujan v. National Wildlife Feder-

ation, in which the Supreme Court emphasized the ripe-

ness doctrine, stating that a regulation is ordinarily not

ripe for review “until the scope of the controversy has

been reduced to more manageable proportions, and i's

factual components fleshed out, by some concrete action

applying the regulation to the claimant's situation in a

fashion that harms or threatens to harm him.” 497 U.S.

871, 891, 110S. Ct. 3177, 111 L. Ed. 2d 695 (1990) (em-

phasis added).

As the law of ripeness has evolved, the Supreme

Court and circuit courts have repeatedly declined pre-

mature review. See Nat? Park Hospitality Ass'n v.

Dep't, 5388 U.S. 808, 812, 123 S. Ct. 2026, 155 L. Ed. 2d

1017 (2003) (holding that although the question presen-

ted was purely legal and the rule constituted final ac-

tion, further factual development would “significantly

advance our ability to deal with the legal issues presen-

ted” so the matter was not ripe for judicial review); Re-

no v. Catholic Soc. Servs,, 509 US. 48,113 S. Ct. 2485,

eg ee Te eee) ae ee Se ee ew Oe en SON eee y

tye we

BS a ‘

ine

“er ee ee eee

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ek oe te SO | bP ee, 2 ee es ee

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125 L. Ed. 2d 38 (1993) (agency rules that will apply at

a later stage are not ripe for immediate judicial review);

see also Sabre, Inc. v. Dept of Transp., 429 F.3d 1113

(D.C. Cir. 2005) (a purely legal claim may be less fit for

judicial resolution when it is clear that a later as—applied

challenge will present the court with a richer and more

informative factual record), Louisiana Envtl. Action

Network v. EPA, 172 F.3d 65 (D.C. Cir. 1999) (ripeness

asks whether consideration of the issue would benefit

from a more concrete setting); Va. Soc'y for Human

Life, Ine. v. Fed. klection Comm'n, 263 F.3d 379 (4th

Cir. 2001) (rationale of ripeness doctrine is to prevent

courts from entangling themselves in abstract disagree-

ments over administrative policies).

On this record, Earth Island has established ripeness

only with respect to 36 C.F.R. §§ 215.12(f) and 215.4(a),

which categorically exempt from appeal Forest Service

actions that do not require an FA or EIS under NEPA.

In their complaint, Earth Island alleges that “these new

regulations” (the 2003 Rule) have been applied to decis-

ions across the nation, including the Burnt Ridge Pro-

ject. That is the only project specifically referenced in

the complaint. However, only 36 C.F.R. §§ 215.12(f) and

215.4(a) were applied in the context of the Burnt Ridge

Project. For that project, plaintiffs were unable to ap-

peal the timber sale in the decision memo because the

Forest Service had categorically excluded the project

from administrative notice, comment, and appeal. Earth

Island has not shown that the other challenged regu-

lations were applied in the context of the Burnt Ridge

Timber Sale or any other specified project. The record

is speculative and incomplete with respect to the re-

maining regulations, so the issues are not fit for judicial

decision under Abbott Laboratories. While Earth Lsland

;

So. ter eee Seen ee oP eee ea

er ce) ee ee

TS ye Te ge ST ee See ee Be Ny ee Pee Ee ee ee ee ee ee ee eee et

has established sufficient injury for standing purposes,

it has not shown the sort of injury that would require

immediate review of the remaining regulations. There is

not a sufficient “case or controversy” for us to review

regulations not applied in the context of the record be-

fore this court.

The parties’ agreement to settle the Burnt Ridge

Timber Sale dispute does not affect the ripeness of

Earth Island's challenge to 36 C.F.R. §§ 215.12(f) and

215.4(a). The record remains sufficiently concrete to

permit this court to review the application of the reg-

ulation to the project and to determine if the regulations

as applied are consistent with the ARA.

V. The Validity of 36 C.F.R. §§ 215.12(f) and 215.4(a)

The relevant statute provides:

SEC. 322. FOREST SERVICE DECISIONMAK.

ING AND APPEALS REFORM.

(a) IN GENERAL.-In accordance with this section, the

Secretary of Agriculture, acting through the Chief of

the Forest Service, shall establish a notice and

comment process for proposed actions of the Forest

Service concerning projects and activities imple-

menting land and resource management plans devel-

oped under the Forest and Rangeland Renewable

Resources Planning Act of 1974 (16 U.S.C. 1601 ef

seg.) and shall modify the procedure for appeals of

decisions concerning such projects.

Pub. L. 102-381 (codified at 16 U.S.C. § 1612 note). The

Forest Service argues that the promulgation of 36

C.F.R. $ 215.12(f), categorically excluding from appeal

any agency decision that does not require an EA or ELS,

Perr

ee a eee, ee OF Re TE ea Pe eR Le a ee

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and 36 C.F.R. § 215.4(a), categorically excluding from

notice and comment those same decisions, is the agen-

cys reasonable interpretation of ambiguous portions of

the ARA. Earth [sland argues that the plain language

of the statute requires an administrative notice,

comment, and appeal process. In the alternative, Earth

Island also argues that the legislative history of the

ARA renders the challenged regulation manifestly

contrary to the statute because the statute was passed

in response to a proposal to eliminate the right to notice,

comment, and an administrative appeal.

In Chevron U.S.A. Ine. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d

694 (1984) (hereinafter “Chevron”), the Supreme Court

set forth the familiar two-step approach for courts to

evaluate agency regulations promulgated pursuant to

statute. First, courts must examine the statute itself to

determine whether Congress has spoken directly to the

precise question. /d. at 842, 104 S. Ct. 2778. If the in-

tent of Congress is clear, that is the end of the inquiry

because agencies (and courts reviewing their actions)

must give effect to the unambiguously expressed intent

of Congress. /d. at §42-43, 104S. Ct. 2778. If an agen-

cy’s regulation is in conflict with the plain language of

the statute, reviewing courts do not owe deference to the

agency's interpretation.

Second, “if the statute is silent or ambiguous with re-

spect to the specific issue, the question for the court is

whether the agency's answer is based on a permissible

construction of the statute.” /d. at 843, 1048. Ct. 2778.

“In determining whether an agency's construction is

permissible, the court considers whether Congress has

explicitly instructed the agency Lo flesh out specific pro-

17a

visions of the general legislation, or has impliedly left to

the agency the task of developing standards to carry out

the general policy of the statute.” Tovar v. U.S. Postal

Serv., 3 F.3d 1271, 1276 (9th Cir. 1993). “When relevant

statutes are silent on the salient question, we assume

that Congress has implicitly left a void for an agency to

fill. We must therefore defer to the agency's construc-

tion of its governing statutes, unless that construction is

unreasonable.” Chevron, 467 U.S, at 843-44, 1048. Ct.

2778. Accordingly, “reasonableness” is the standard

where courts review regulations under Chevron's second

step.

Our first inquiry is whether Congress has spoken di-

rectly to the issue governed by 36 C.F.R. §§ 215.12(f)

and 215.4(a). The ARA provides, in relevant part:

In accordance with this section, the Secretary of Ag-

riculture, acting through the Chief of the Forest

Service, shall establish a notice and comment process

for proposed actions of the Forest Service concern-

ing projects and activities implementing land and re-

source management plans developed under the

Forest and Rangeland Renewable Resources Plann-

ing Act of 1974 (16 U.S.C. § 1601 ef seg.) and shall

modify the procedure for appeals of decisions con-

cerning such projects.

16 U.S.C. § 1612 note, § 322(a) (emphasis added). The

regulations read, in relevant part: The following de-

cisions and actions are not subject to appeal under this

part, except as noted: . . . f) Decisions for actions that

have been categorically excluded from documentation in

anEAorEIsS ...

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a ils a OT he es

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36 CPLR. § 215.12(f). The procedures for legal notice

(§ 215.5) and opportunity to comment (§ 215.6) do not

apply to:

(a) Projects and activities which are categorically ex-

cluded from documentation in an|EIS|or[{EA]. . .

36 C.F.R. § 215.4(a).

The plain language of the ARA states that the l’orest

Service “shall” provide for administrative notice, com-

ment, and appeal. The statutory language does not refer

to NEPA. The statute does not provide for any exclus-

ions or exemptions from its requirement that the Forest

Service provide notice, comment, and an administrative

appeal for decisions implementing Forest Plans. Ac-

cordingly, 36 C.F.R. §§ 215.12(f) and 215.4(a) conflict

with the plain language of the statute.

Even if we could construe the statute as ambiguous,

the regulation is invalid because it fails Cherron’s se-

cond step:

If the intent of Congress is clear, that is the end of

the matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of

Congress. If, however, the court determines Con-

gress has not directly addressed the precise question

at issue, the court does not simply impose its own

construction on the statute, as would be necessary in

the absence of an administrative interpretation. Ra-

ther, if the statute is silent or ambiguous with re-

spect to the specific issue, the question for the court

is whether the agency's answer is based on a per-

missible construction of the statute.

Chevron, 167 U.S. at 812-43, LOA S. Ct. 2778.

Se ee et ee oy ey ee Pe el Pe ean ye eee eT ey eee © eee

}

19a

The Forest Service argues that the categorical ex-

clusions are the result of the Secretary's reasonable con-

struction of the statute to distinguish between agency

actions requiring an EA or EIS and projects “that lack

significant individual or cumulative environmental im-

pacts.” The Forest Service relies exclusively on its con-

tention that the regulation warrants Chevron deference

as a reasonable construction of the ARA, and argues

that the district court erred in finding the categorical

exclusion regulations “manifestly contrary” to the ARA.

Plaintiff Earth Island contends that the legislative

history of the ARA clearly indicates that Congress did

not intend to exclude timber sales and other actions

from administrative notice, comment, and appeal simply

because they are excluded from NEPA analysis. Earth

Island argues that a number of other significant deci-

sions implementing forest plans, including oil leasing,

mining, and off-road vehicle use, were intended to be

subject to such requirements under the ARA. Earth

Island cites legislative history, including a conference

report and a comment letter from Representative Rich-

ardson stating that “[wle believe that the agency's

recent proposal to eliminate appeals of timber sales, oil

and gas leases, and other project level activities is a slap

in the face of democratic values.” 138 Cong. Rec.

2075-02, 1992 WL 157159 (July 2, 1992). Earth Island

argues, and the district court concluded, that the ARA

was passed in response to the proposed changes to the

appeal process that would eliminate appeals for agency

actions that previously required “decision documents”

prior to 1992.

Marth Island's arguments are persuasive. Prior to

1992, the Forest Service notice, comment, and appeals

PRN Pa on Ee Ee et eT eee

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ey Maer en SS Pea ee eS ee ae or oe Nee

wee wo eae fe te ee eee

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;

20a

process applied to a range of agency actions and pro-

grams, including “timber sales, road and facility con-

struction, range management and improvements,

wildlife and fisheries habitat improvement measures,

forest pest management activities, removal of certain

minerals or minera! materials, land exchanges and

acquisitions, and establishment or expansion of winter

sports or other special recreational sites.” 36 C.P.R.

§ 217.3(b) (1992). At a minimum, the categorical

exclusion of timber sales from administrative notice,

comment, and appeal is contrary to Congressional intent

to provide such processes through the ARA. The ARA

was passed in response to a proposal to eliminate ap-

peals for decisions that would be categorically excluded

from appeal, so the Forest Service's attempt to cireum-

vent Congressional intent to preserve the administrative

appeals process cannot be a permissible interpretation

of the ARA. The Forest Service, to comply with the

ARA, must promulgate regulations that preserve

administrative appeals for any decisions subject to

administrative appeal before the proposed changes in

1992. Had Congress wanted to categorically eliminate

the right of notice, comment, and appeal for timber sales

and other categorically excluded Forest Service actions,

the ARA would not have been necessary.

The exemption of categorically excluded Forest Ser-

vice actions from notice, comment, and administrative

appeal is manifestly contrary to both the language and

the purpose of the ARA. Therefore, 36 C.F.R. $§ 215.12

(f) and 36 C.F.R. 215.4(a) are invalid.

VI. Remaining Issues

On July 26, 2005 (following the district court’s order

of July 7, 2005), the Forest Service filed a Rule 60(b)(6)

ee ee a, ene gee Ny ge eR eM ee ee ee Ty ee el eG en ee ee ee ne eer ae Pe eee

2la

motion for clarification or amendment of the court’s or-

der, asking that the injunction apply only to the Eastern

District of California, and asking for prospective ap-

plication only. On September 16, 2005, the district court

clarified that the scope of the injunction was nationwide,

precluding any enforcement and implementation of the

invalidated regulations.

The district court further clarified that the injunction

would apply only prospectively, to decisions made after

the July 7, 2005 order date. The Forest Service chal-

lenges the geographic scope of the injunction on appeal.

The nationwide injunction, as applied to our decision

to affirm the district court’s invalidation of 36 C.F.R.

§§ 215.12(f) and 215.4(a), is compelled by the text of the

Administrative Procedure Act, which provides in rele-

vant part:

To the extent necessary to decision and when presen-

ted, the reviewing court shall decide all relevant que-

stions of law, interpret constitutional and statutory

provisions, and determine the meaning or ap-

plicability of the terms of an agency action. The re-

riewing court shall... (2) hold unlawful and set

aside agency action, findings, and conclusions

found to be-(A) arbitrary, capricious, an abuse of

discretion, or otherwise not ni accordance with law

5 U.S.C. § 706 (emphasis added). The Ninth Circuit has

set aside regulations that are not permissible interpre-

tations of the governing statute, and we affirm the dis-

trict court’s decision to do so here. See, e.g., NRDC v.

EPA, 966 F.2d 1292, 1304 (9th Cir, 1992) (vacating a

Clean Water Act rule); Asarco v. EPA, 616 F.2d 1153,

1162 (9th Cir. 1980) (vacating a Clean Air Act rule).

The district court did not abuse its discretion in is-

suing a nationwide injunction. We do not decide

whether the district court properly enjoined enforce-

ment of 36 C.F.R. § 215.18(b)(1), because the Forest

Service did not appeal the district court’s ruling as to

4 that regulation. See Erlin v. United States, 364 F.3d

1127, 1130 (9th Cir. 2004). Our decision, however,

vacates the district court’s injunction order with respect

to all other challenged regulations except 36 C.F.R.

§§ 215.12(f) and 215.4(a). The nationwide injunction

against enforcement of 36 C.F.R. §& 215.12(f) and

215.4(a) is AFFIRMED.

VIT. Conclusion

We AFFIRM the district court's invalidation of 36

C.F.R. §§ 215.12(f) and 215.4(a) and the nationwide

injunction against their enforcement. We REMAND the

judgment and injunction with respect to the remaining

regulations, except 36 C.F.R. § 215.18(b)(1), to the dis-

trict court with instructions to vacate for lack of a con-

q troversy ripe for review. The parties shall bear their

e own costs on appeal.

ee on” : ty A J — ‘ > P 7 Bons Lae eS

OE ey ae ae eee ee ee ee ee ee ee ey ae eee Seer Se Se eee See ae eT ee ee ee ee .

APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

No. CIV F-03-6386 JKS

EARTH [ISLAND INSTITUTE, A CALIFORNIA NON-

PROFIT CORPORATION; SEQOUIA FORESTKEEPER, A

CALIFORNIA NON-PROFIT CORPORATION;

ITEARTWOUD, AN INDIANA NON-PROFIT CORPORATION;

CENTER FOR BIOLOGICAL DIVERSITY, A NEW MEXICO

NON-PROFIT CORPORATION, AND SIERRA CLUB, A

CALIFORNIA NON-PROFIT CORPORATION, PLAINTIFFS

NANCY RUTHENBECK, IN HER CAPACITY AS DISTRICT

RANGER,HOT SPRINGS RANGER DISTRICT,SEQOUIA

NATIONAL FOREST; UNITED STATES FOREST

SERVICE, AN AGENCY OF THE U.S. DEPARTMENT OF

AGRICULTURE ; ANN VENEMAN, IN HER OFFICIAL

CAPACITY AS SECRETARY OF AGRICULTURE; DALF

BOSWORTH,IN HIS OFFICIAL CAPACITY AS CHIEF OF

THE U.S. FOREST SERVICE, DEFENDANTS

Filed: Nov. 30, 2005

ORDER

SINGLETON, J.

Before the Court is Defendants’ motion for stay pen-

ding appeal. Docket No. 94. Plaintiffs opposed the mo-

ee ee ee a ee ee Ee ee RY

24a

tion for stay and moved for clarification. Docket No. 95.

The Court granted the motion for clarification and, in

light of the clarification, requested further briefing

regarding the hardships necessitating a stay pending

appeal. Docket No. 98. The parties have filed the

requested briefing and the matter is ripe for decision.

Docket Nos. 100; 106.

DISCUSSION

The standard for a stay pending appeal is similar to

the test for the issuance of preliminary injunctions.

Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983).

The test is a continuum, requiring the movant to show at

one end, “both a probability of success on the merits and

the possibility of irreparable injury,” and at the other

end, “that serious legal questions are raised and that the

balance of hardships tips sharply in its favor.” /¢.

(citations omitted). Under any formulation of the test,

the movant “must demonstrate that there exists a

significant threat of irreparable injury.” Oakland

Tribune Tuc. v. Chronicle Publ'n Co., 762 F.2d 1374,

1376 (9th Cir. 1985). The Court has already determined

that the Forest Service has not shown a probability of

success on the merits but has raised substantial issues.

Docket No. 98 at 3. The Forest Service must therefore

demonstrate that the hardships it will face significantly

outweigh the hardships Plaintiffs will suffer if stay is

granted. See Idaho Sporting Congress, Inc. v. Alex-

ander, 222 F.3d 562, 565 (9th Cir. 2000) (“These two

formulations represent two points on a sliding scale in

which the required degree of irreparable harm increases

as the probability of suecess decreases.” (quoting Oak-

land Tribune Ine., 762 F.2d at 1376)).

‘wastes, eee ee

ae Fi I ee ee ee ee ee er ee ee eee ee a

25a

. Il. Injury to the Forest Service

a In support of its argument that it will suffer ir-

a reparable injury in the absence of a stay pending appeal

Mg the Forest Service describes several potential harms.

With the re-implementation of the 1993 rule and the

2000 supplemental rule, categorical exclusion categories

4 enacted since that time are, according to the Forest Ser-

S vice, in “regulatory limbo.” Docket No. 100 at 2. These

categories include such activities as prescribed burning,

logging to reduce the risk of wildfire, and salvage log-

ging of burned timber. According to the Forest Service,

these projects are of critical importance to the safety of

E communities and the health of forests. The Forest

a Service is concerned that delaying prejects aimed at re-

r ducing the risk of wildfires by subjecting them to notice,

comment, and appeal procedures will imperil forests and

we nearby communities.

y The Appeals Reform Act (“ARA”) includes an

Me automatic stay provision, which states:

if (e) Stay. Unless the Chief of the Forest Service

determines that an emergency situation exists with

respect to a decision of the Forest Service, imple-

a mentation of the decision shall be stayed during the

4 period beginning on the date of the decision—

p. (1) for 45 days, if an appeal is not filed, or

2 (2) for an additional 15 days after the date of

a the disposition of an appeal under this section, if

a the agency action is deemed final under subsec-

a tion (d)(4).

‘

ee ee ee ee ee) ee ere ee ing

PPL Ae, ae ML ON Pa. Ry A LID Be, Om ER FOO EE We Rte ey eS ee ee, Ee eye Sy ny re eee

° : - . ,

¥, ate

Ka | Yi TOT?" et

26a

Pub. L. No. 102-381, Tit. IIT § 332(a), 106 Stat. 1419

(1992), codified at 16 U.S.C. § 1612 note (e). The Forest

Service defines “emergency situation” as

A situation on National Forest System (NFS) lands

for which immediate implementation of all or part of

a decision is necessary for relief from hazards

threatening human health and safety or natural

resources on those NF'S or adjacent lands; or that

would result in substantial loss of economic value to

the Federal Government if implementation of the

decision were delayed.

36 CPLR. 215.2.

In the Court’s July Order. the Forest Service's

implementation of the emergency stay provisions of the

ARA were upheld in part and invalidated in part. The

Court upheld as permissible the inclusion of “substantial

J loss of economic value” in the definition of “emergency

F. situation.”

The Court found impermissible the Forest Service's

delegation of emergency declaration authority to

subordinates of the Chief of the Forest Service and also

invalidated a provisior. that required notice of an appeal

disposition to be sent to the appellant within the first

five days of the fifteen-day stay period because the

provision was not a “logical outgrowth” of the proposed

rule. Docket No. 77 at 15-19.

The Forest Service has legitimate concerns regard-

ing community and forest health and safety. The emer-

gency stay provision is designed to allow the Forest Ser-

vice to address these concerns as they arise. Via the

emergency stay provision, the Forest Service has the

authority to go forward with projects that are necessary

r boos : & ? * - - . “* . s P - » é

Se ee be ee ee ee ee, ee ee ee aha a” er er ane oe Se Nh eee wear Le er ee Tye

ee ey ee ee OMe LEN CoP SR PR PR ye A ee A PO ne SRS Per seat ee et ee a ae ee

27a

mit

to avoid irreparable harm from forest fires or other ser-

ious problems.

II. Injury to Plaintiffs

Plaintiffs identify multiple potential irreparable

harms that would befall them if stay pending appeal

were granted. Plaintiffs’ concerns are twofold. The first

harm that they would suffer is denial of the opportunity

to participate in Forest Service projects through notice,

comment, and appeal procedures. Second, concomitant

to the first concern, Plaintiffs fear that denial of the

opportunity to participate could result in irreparable

injury to the environment.

Plaintiffs’ concerns regarding ability to participate in

the notice, comment, and appeal procedures are signif-

icant. While in some instances these concerns could be

abated by the ability to sue the Forest Service over spe-

cific projects, this is small comfort given the deferentia!

standards courts often employ when evaluating agency

decisions, and the potential for irreparable harm to the

environment before and during a suit. See Chevron,

USA... Ine. v. Natural Res. Def. Council, Ine. 467 U.S.

837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). As the

Supreme Court has ohserved, “[e|nvironmental injury,

by its nature, can seldom be adequately remedied by

money damages and is often permanent or at least of a

long duration, ie., irreparable. If such injury is

sufficiently likely, therefore. the balance of harms will

usually favor . . . protect{ing] the environment.”

Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531,

d45, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987); see also

Idaho Sporting Congress, 1ne., 222 F.3d at 569 (quoting

Amoco). On balance, the Forest Service’s concerns

regarding irreparable injury, in light of the emergency

stay provision, are outweighed by Plaintiffs’ concerns

about the inability to participate in decision making

processes, and consequent potential harm to the

environment.

IT IS THEREFORE ORDERED:

The Forest Service's motion for a stay pending

appeal at Docket No. 94is DENIED.

29a

APPENDIX €

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

Case No, CTV F-03-6386 JKS

EARTH ISLAND INSTITUTE, A CALIFORNIA NON-

PROFIT ORGANIZATION; SEQUOIA FORESTKEEPER, A

CALIFORNIA NON-PROFIT ORGANIZATION;

HEARTWOOD, AN INDIANA NON-PROFIT CORPORATION;

CENTER FOR BIOLOGICAL DIVERSITY, A NEW MEXICO

NON-PROFIT CORPORATION, AND SIERRA CLUB, A

CALIFORNIA NON-PROFIT CORPORATION, PLAINTIFFS

(tA

NANCY RUTHENBECK, IN HER CAPACITY AS DISTRICT

RANGER, HOT SPRINGS RANGER DISTRICT, SEQUOIA

NATIONAL FOREST; UNITED STATES FOREST

SERVICE, AN AGENCY OF THE U.S. DEPARTMENT OF

AGRICULTURE; ANN VENEMAN, IN HER OFFICIAL

CAPACITY AS SECRETARY OF AGRICULTURE; DALE

BosworTH, IN HIS OFFICIAL CAPACITY AS CHIEF OF

THE U.S. FOREST SERVICE, DEFENDANTS

(Filed: Sept. 16, 2005]

ORDER

Two motions are presently before the Court. The

first is Defendants’ motion to clarify and amend judg-

* » ®

eye yer ey ae sey

30a

ment. Docket No. 79. The second is Plaintiffs’ motion to

hold the Forest Service in contempt. The motions will

be addressed in turn.

DISCUSSION

Order and judgment were entered in this case on

July 7, 2005, upholding in part and striking in part the

Forest Service's regulations governing notice, comment

and appeal of agency decisions. Docket Nos. 77 (“July

Order”); 78. The parameters of the regulations and the

reasons for upholding or striking them are set out at

length in the July Order and do not bear repeating here.

The current dispute concerns the reach of the July

Order, both geographically and temporally.

I. Defendants’ Motion to Clarify and Amend Judgment

Defendants urge the Court to clarify the July Order

in two regards. First, they seek a geographic limitation

of the scope of the July Order to the Eastern District of

California. Second, Defendants move for clarification

that the July Order applies prospectively only.

Defendants move under Federal Rule of Civil

Procedure 60(b)(6). The rule permits relief from a final

judgment or order for “any reason justifying relief.”

This provision is “used sparingly as an equitable remedy

to prevent manifest injustice.” United States v. Alpine

Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.

1993). Under Federal Rule of Civil Procedure 59(e), a

motion to alter or amend a judgment must be filed no

later than ten days after entry of the judgment. Relief

beyond the ten-day window is sometimes available under

Rule 60(b\6), but only where extraordinary circumstan-

ces prevented a litigant from seeking earlier relief. /¢.

dla

Here it appears that the Forest Service became

aware of the divergence between its understanding of

the operation of the July Order and Plaintiffs’ under-

standing after receiving a letter from Plaintiffs dated

July 22, 2005. Because the Forest Service was appar-

ently unaware of the lingering issues regarding the

functioning and application of the July Order until

receiving the letter several days after the ten day

deadline passed, the 60(b)(6) motion appears to be the

appropriate mechanism for clarification or amendment.

The substantive issues presented by the 60(b)(6) motion

are therefore addressed below.

A. Geographic Scope

The gravamen of Defendants’ argument for limiting

the seope of the July Order to the Eastern District of

California is that the Government has an interest in

obtaining multiple judicial interpretations of the issues

resolved by the July Order. They argue that because of

this interest, the Forest Service should be allowed to

continue to enforce the regulations invalidated by the

July Order in other districts within the Ninth Circuit,

and in other circuits.

Agencies are sometimes allowed to confine a ruling

of one court to that circuit and proceed with their

conflicting interpretation of the law elsewhere. A

federal agency is not, however, necessarily entitled to

limit a ruling to the deciding court's immediate juris-

diction. In Califano v. Yamasaki, the Supreme Court

held that a class action brought in federal district court

need not necessarily be geographically limited. 442 U.S.

682, 702 (1979). The central concern in such a case is

that the relief granted is not “more burdensome than

necessary. /d. This principle stems from the basic

See a a ae ee ek ee

d2a

notion that relief should be narrowly tailored to address

the specific harm shown. “On the other hand, [relief] is

not necessarily made over-broad by extending benefit or

protection to persons other than prevailing parties in

the lawsuit—even if it is not a class action — if such

breadth is necessary to give prevailing parties the relief

lo which they are entitled. Bresgal v. Brock, 843 F.2d

1163, 1170-71 (9th Cir. 1987). Where nationwide relief

is not fashioned, the courts are left to address the ag-

ency circuit by circuit, until the issue reaches the Su-

preme Court. See Hi-Craft Clothing Co. v. NLRB, 660

F.2d 910, 912 n.t (3d Cir. 1981) (suggesting “that in most

situations, a far better approach for an administrative

agency would be to accept the first ruling of a court of

appeals on a particular point or else seek reversal in the

Supreme Court or a statutory change by Congress. To

shop in a number of courts of appeals in hopes of se-

curing favorable decisions is not only wasteful of over-

taxed appellate resources but dissipates agency energies

as Well. This shopping practice should be subjected to

searching and critical review.”).

The Court is sensitive to the Forest Service's in-

terest in fully developing the legal issues implicated by

the notice, comment. and appeal regulations. The issues

are both factually and legally complex. However, in or-

der to adequately redress the harm suffered by Plain-

tiffs, the invalidation of the Porest Service regulations

as outlined in the July Order must reach beyond the

borders of the Eastern District of California. Although

this action originally challenged the Burnt Ridge

Project in California, the case evolved from challenging

a specific project in a specific forest to challenging

regulations, applicable nationwide, promulgated by the

Forest Service. As the Court explained in the July

;

“

33a

Order, Plaintiffs “suffered actual injury due to the

Forest Service's regulations implementing the ARA.”

Docket No. 77 at 4-5. The appropriate remedy, there-

fore, is to prevent such injury from occurring again by

the operation of the invalidated regulations, be it in the

Eastern District of California, another district within

the Ninth Circuit, or anywhere else in the nation. In-

asmuch as Defendants’ motion to clarify or amend seeks

to geographically confine the July Order, the motion will

be denied.

B. Temporal Scope

Defendants’ argue that the July Order should only

apply to projects beginning after the issuance of the Ju-

ly Order. Retrospective application, they assert, is

inappropriate because the Forest Service reasonably

relied on the invalidated regulations and because re-

examining projects begun under the now invalidated

regulations that are not closed would be overly burden-

some. Plaintiffs respond that judicial orders normally

apply retrospectively and that the Court did not indicate

an intent to stray from this precept. They further argue

that the Forest Service has not demonstrated com-

pelling circumstances justifying non-retroactive ap-

plication.

Becanse it is instructive, the law of retroactivity is

discussed below. In the interest of clarity, however, it is

important to note as an initial matter that what is at is-

sue her? is the temporal scope of the July Order. Retro-

activity as the term is generally used has dual functions

of remedy and choice of law. When an appellate court

issues a decision, the decision generally governs pending

actions. This Court, of course, is not an appellate court.

and its decisions are not accorded retroactive appli-

Yay

ee we ee eS eae

3da

cation in the sense of choice of law. The Court may,

however, fashion a remedy that applies retroactively to

the parties before it. The question before the Court is

whether such a remedy is appropriate in this case.

The law governing when a judicial decision applies

only prospectively is not entirely clear. In Cherron Oil

(Co. v. Huson the Supreme Court announced a three-part

framework for determining when exclusively pro-

spective application is appropriate, and while the case

has not been explicitly overruled, the framework has

been called into question. Compare 404 U.S. 97, 106-107

(1971) (establishing three-part framework), with Harper

v. Va. Dep't of Taxation, 509 U.S. 86, 97-98 (1993). See

also Miller v. County of Santa Cruz, 39 F.3d 1030, 1035

(9th Cir. 1994) (noting that the Harper decision aban-

doned the Chevron Oil approach to determining pros-

pective application in civil cases). The Chevron Oil

framework is as follows: First, a decision applied

non-retroactively should establish a new principle of

law, cither by overruling past precedent or by deciding

an issue of first impression, the resolution of which was

not clearly foreshadowed. Second, courts consider the

purpose and effect of the rule and whether retroactive

application would advance or retard the decision to be

applied. Finally, courts weigh any inequitable results

that might follow from retroactive application of the

decision. Chevron Oil Co., 404 U.S. at 106-107. The

Court significantly reworked the final prong of the Che-

vron Oil analysis in Harper, stating that it is imper-

missible in both civil and criminal cases for “‘the sub-

stantive law [to] shift and spring’ according to ‘the

particular equities of [individual parties’) claims’ of

actual reliance on an old rule and of harm from a retro-

active application of the new rule.” //arper, 509 U.S. at

354

97 (citing James B. Beam Distilling Co. v. Georgia, 501

U.S. 529, 543 (1991) (opinion of Souter, J.)) (holding,

“when this Court applies a rule of federal law to the

parties before it, that rule is the controlling interpre-

tation of federal law and must be given full retroactive

effect in all cases still open on direct review and as to all

events, regardless of whether such events predate or

posidate our announcement of the rule”). Later, in

Reynoldsvilie Casket Co. v. Hyde, the Supreme Court

clarified that after Harper, Chevron Oil does not permit

non-retroactive application based upon a party's reliance

interests. 514 U.S. 749, 752-54 (1995). However, in

Ryder v. United States, the Court noted “whatever the

continuing validity of Chevron Oil after Harper and

Hyde, there is not the sort of grave disruption or

inequity involved in awarding retrospective relief to this

petitioner.” 515 U.S. 177, 184-85 (1995) (noting that only

seven to ten cases were open on direct review that would

be affected by retroactive application of the ruling).

Presumably, therefore, while subsequent cases have

chipped away at the final prong of Chevron Oil—

weighing inequitable results flowing from retroactive

application—some weighing of inequities remains a part

of the analysis.

Here there is no doubt that the Forest Service relied

on the regulations invalidated by the July Order. After

Harper and Hyde such reliance is simply insufficient to

preclude the retroactive application of judicial decisions.

What is not insufficient, however, is the “grave dis-

ruption or inequity” that would follow from retroactive

application of the July Order as part of the remedy

were promulgated over two years ago. In January of

2005, the Forest Service created a national database to

36a

track projects that are likely to be documented in a

decision memo, decision notice, or record of decision.

Docket No. 79 (Deel. of Manning) at 93. According to

the database, between January 1. 2005, and June 30,

2005, 1,090 decision memos authorizing categorically

excluded projects were signed. /d. at 14. The database

does not track how many of these authorizations are still

pending. /d. From January 1, 2005, to July !, 2005, the

database shows that 3,377 proposed decisions were

expected to be documented in decision memos and

categorically excluded from documentation in an envi-

ronmental impact statement or environmental assess-

ment. /d. at 16, Simply culling from the tremendous

volume of decisions made under the invalidated

regulations those that are not final from those that are

final would be a daunting task. Furthermore, because

the Juiy Order invalidated and severed regulations

governing procedure, retrospective application would

require not only that the old regulations not be em-

ployed, but also that regulations governing procedure

for public involvement be enacted in the old regulations’

stead before moving forward with pending projects. In

short, a retroactive remedy would seem to plunge the

Forest Service headlong into a crippling morass of

confusion. The July Order, therefore, will apply to For-

est Service projects and decisions post-dating the July

7, 2005, docketing of the July Order.

Il. Plaintiffs’ Motion for Contempt

Plaintiffs’ argue that the Forest Service should be

held in contempt for violating the July Order. They aver

that the Forest Service directly violated the July Order

by continuing to apply regulations set aside by the July

Order. Further, they assert that even if Defendants’

motion to amend and clarify is well founded, the Forest

Service should still be held in contempt for applying

invalidated regulations during the pendency of the

motion.

On balance, it seems that contempt is not warranted

at this time. To be clear, the Court fully intends to en-

force its orders. Given the complexity of the issues in-

volved in the July Order, as well as the issues that re-

mained after the issuance of the July Order, however, it

seems inappropriate to hold the Forest Service in con-

tempt at this time.

IT IS THEREFORE ORDERED:

Defendants’ motion to clarify and amend judgment

at Docket No. 79 is GRANTED IN PART and DENIED IN

PART. The conclusions of the July Order will not be

confined to the Eastern District of California or the

Ninth Circuit. The July Order will be applied pro-

spectively, as of July 7, 2005. Plaintiffs’ motion for

contempt at Docket No. 81 is DENIED.

Dated at Anchorage, Alaska, this 16 day of Sep-

tember 2005.

‘s) JAMES K. SINGLETON

JAMES K. SINGLETON, JR.

United States District Judge

ee ee Oe OL Te ee EP ED, OMNES Shes, See ee er eeh eRe ron hee eee ae

APPENDIX D

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

No. CLV F-03-6386 JKS

EARTH ISLAND INSTITUTE, A CALIFORNIA NON-

PROFIT CORPORATION; SEQUOIA FORESTKEEPER, A

CALIFORNIA NON-PROFIT CORPORATION:

HEARTWOOD, AN INDIANA NON-PROFIT CORPORATION;

CENTER FOR BIOLOGICAL DIVERSITY, A NEW MEXICO

NON-PROFIT CORPORATION, AND SIERRA CLUB, A

CALIFORNIA NON-PROFIT CORPORATION, PLAINTIFFS

».

DEL PENGILLY, IN HIS CAPACITY AS DISTRICT

RANGER, HOT SPRINGS RANGER DISTRICT. SEQUOIA

NATIONAL FOREST; UNITED STATES FOREST

SERVICE, AN AGENCY OF THE U.S. DEPARTMENT OF

AGRICULTURE; ANN VENEMAN, IN HER OFFICIAL

CAPACITY AS SECRETARY OF AGRICULTURE; DALE

BusWORTH, IN HIS OFFICIAL CAPACITY AS CHIEF OF

THE U.S. FOREST SERVICE, DEFENDANTS

July 2, 2005

ORDER

ee ee ee ee ees OS a eee oe eo

39a

SINGLETON, Senior District Judge.

Plaintiffs Earth Island Institute, et a/., present a facial

challenge to the 2003 regulations promulgated by the

United States Forest Service implementing the Forest

Service Decision Making and Appeals Reform Act

(“ARA”), Pub. L. No. 102-381, Tit. LIL § 332(a), 106 Stat.

1419 (1992), codified at 16 U.S.C. § 1612 note.’ Plaintiffs

argue that the regulations violate the ARA by im-

properly exempting certain Forest Service decisions

from appeal, by exempting certain Forest Service deci-

sions that are subject to appeal from the autumatic stay

provision of the ARA, and by limiting the public com-

ment and appeals process required by the ARA. Docket

Nos. 70 (Pls.’ opening br.); 72 (Pls. reply br.). The

Forest Service disputes each of these contentions and

argues that Plaintiffs lack standing and that this case is

not ripe for decision. Docket No. 71 (Defs.’ opp’n). The

Court has jurisdiction. 28 U.S.C. § 1331.

Plaintiffs initially brought this suit to challenge the

Burnt Ridge Project timber sale offered by the Forest

Service and to challenge the Forest Service's regula-

tions implementing the ARA. See Docket No. 75 (Pre-

trial order). The Court granted a preliminary injunction

preventing the project and several months later ap-

proved a settlement regarding the project. /d. Thus,

the Burnt Ridge timber sale is not at issue in this case.

Only the challenges to the administrative appeal rules

remain.

* For the sake of brevity and clarity, further citations tothe ARA will

include only the specific number within the ARA, rather than tne public

law number and code section

ge ie eT Oe ee See ee PR ee eT me ve

3”.

nt yg

Foe, See ee eee ae ee ee ee Cee ee Te

ea 14

ae a ee

DISCUSSION

In 1992 the Forest Service sought to overhaul its re-

view and appeal procedures. The Forest Service pro-

posed replacing the administrative appeal process for

project decisions with a predecision notice and comment

period. In response, Congress passed the ARA. The

ARA provides:

In accordance with this section, the Secretary of

Agriculture, acting through the Chief of the Forest

Service, shall establish a notice and comment process

for proposed actions of the Forest Service concerning

projects and activities implementing land and resource

management plans . . . and shall modify the pro-

cedure for appeals of decisions concerning such pro-

jects.

Id. § (a). The ARA goes on to provide specific re-

quirements for the notice, comment, and appeal process

to be developed by the Forest Service. /d. § (b)-(e).

Plaintiffs challenge the Forest Service's implementation

of these specific requirements. However, before con-

fronting the Forest Service regulations, several proce-

dural matters must be addressed. Specifically, the For-

est Service questions whether Plaintiffs have standing

and whether the issues are ripe for decision. The Court

will address these issues first to determine whether

inquiry into the merits of the case is appropriate.

I. Standing

The Forest Service argues that Plaintiffs’ claims

should be dismissed because Plaintiffs lack standing. To

satisfy Article II] standing requirements a plaintiff

must show that:

;-- . « a.

4la

(1) it has suffered “injury in fact” that is (a) concrete

and particularized and (b) actual or imminent, not

conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant;

and (3) it is likely, as opposed to merely speculative,

that the injury will be redressed by a favorable

decision.

Frrends of the Earth, Inc. v. Latdlaw Envtl. Servs. 528

U.S. 167, 180-81, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). Pur-

suant to the Administrative Procedures Act (“APA”), 5

U.S.C. § 551, et seq., plaintiffs seeking to establish

standing must also demonstrate that the alleged injury

is within the “zone of interests” sought to be protected

by the statute allegedly violated. Friends of the Earth

v. United States Navy, 841 F.2d 927, 932 (9th Cir. 1988).

The zone of interests test disallows judicial review only

where “the plaintiff's interests are so marginally related

to or inconsistent with the purposes implicit in the sta-

tute that it cannot reasonably be assumed that Congress

intended to permit the suit.” /d. (quoting Clarke v. Sec.

Indus. Ass'n, 479 U.S, 388, 399, 107 S. Ct. 750, 93 L. Ed.

2d 757 (1987)). “An association has standing to bring

suit on behalf of its members when its members would

otherwise have standing to sue in their own right, the

interests at stake are germane to the organization's

purpose, and neither the claim asserted nor the relief

requested requires the participation of individual

members in the lawsuit.” Laidlaw Envtl. Servs. 528

U.S. at 181, 120 S. Ct. 693 (citing Hunt v. Wash. State

Apple Adver. Comm'n, 432 U.S. 333, 343, 97'S. Ct. 2484,

53 L. Ed. 2d 383 (1977)).

42a

In environmental cases, the relevant inquiry is whe-

ther a plaintiff has suffered injury, not whether the

environment has been injured in fact. /d. A plaintiff.

does not demonstrate injury by alleging that “one of [the

organization's} members uses unspecified portions of an

immense tract of territory, on some portions of which

mining activity has oceurred or probably will occur by

virtue of the governmental action.” Lujan v. Nat’?

Wildlife Fed'n, 497 U.S. 871, 889, 1108. Ct. 3177, 111 L.

Ed. 2d 695 (1990). Statements that a plaintiff would use

an area if not for the opposed action are not the

equivalent of “speculative ‘some day intentions’ to visit

endangered species halfway around the world” that the

Supreme Court bas held insufficient to establish injury

in fact. Laidlaw Enrtl. Servs., 528 U.S. at 184, 1220S. Ct.

693 (quoting Defenders of Wildlife, 504 U.S. at 564, 112

S. Ct. 2130). Where a plaintiff or group of plaintiffs sub-

mits affidavits concerning direct effects to the affiant’s

“recreational, aesthetic, and economic interests,” stand-

ing is appropriate. [d.

The Forest Service asserts that Plaintiffs lack stand-

ing because the member on whom standing is based, Jim

Bensman of the Plaintiff organization Heartwood, has

not made a showing sufficient for standing. Docket No.

71 at 10-11. It argues that Bensman has not shown

injury in fact because his affidavit does not state with

sufficient particularity his interest in national forests

located in California. Further, it argues that any injury

to Bensman’s use and enjoyment of national forests by

development is not “fairly traceable to the challenged

action” of the Forest Service. See Laidlaw Lnvtl. Servs,

028 U.S. at 180, 1208. Ct. 693.

43a

in his declaration, Bensman states that he is a regular

visitor to many of the country’s national forests, includ-

ing several located in California. Docket No. 70, Ex. A

at "9 4-9. In addition to using and enjoying national

forests, Bensman has “commented on [approximately] a

thousand Forest Service projects.” /d. at 113. Over the

years he has also appealed decisions of the Forest Ser-

vice and has, at times, been successful. /d. at § 12.

Since the promulgation of the new regulations, Bensman

affies that he has not been able to appeal projects that

he and Heartwood otherwise would have appealed. /d.

at 414. Further, in August 2003 Bensman and Heart-

wood submitted comments on a Forest Service proposal.

Not knowing whether his comments constituted “sub-

stantive comments” under the new regulations, Bens-

man submitted an addendum to his earlier comments

identifying himself as “an interested and affected party

for this project.” /d. at 918. Later, Bensman and

Heartwood filed an appeal of the project. The appeal

was dismissed because, according to the Regional For-

ester, Bensman and Heartwood did not have “standing

under the 2003 appeal regulations,” and the “comments

received during the Notice and Comment period |did|

not meet the definition of substantive comments.” /d. at

$21.

Plaintiff Heartwood has established sufficient injury

that is fairly traceable to the actions of the Forest

Service in implementing the ARA through the affidavit

of Bensman. Bensman has gone beyond speculative vu:

conjectural injury and has demonstrated that he and

Heartwood have suffered actual injury due to the Forest

Service's regulations implementing the ARA. Standing

in this case is an analytic step away from use and en-

joyment of national forests. Any harm to Plaintiffs’ use

44a

and enjoyment comes from harm to the environment

that in turn comes from being unable to effectively chal-

lenge Forest Service projects in national forests. The

Forest Service's contention that Bensman’s affidavit is

not concrete and particularized because it does not

relate to a specific project in a California national forest

is inapposite. This action challenges the regulations

adopted by the Forest Service in response to the ARA—

not a specific project in a specific national forest—and

reference to a specific forest is not needed to ground the

contention for purposes of showing injury in fact. That

Bensman and his organization have been precluded from

appealing Forest Service projects that they would have

appealed under the old regulations and that the projects

have therefore gone forward and impaired Plaintiffs’ use

and enjoyment is fairly traceable sufficient injury to

clear the standing hurdle. Cf. City of Davis v. Coleman,

521 F.2d 661, 671 (9th Cir. 1975) (“The procedural injury

implicit in agency failure to prepare an EIS the creation

of a risk that serious environmental impacts will be

overlooked is itself a sufficient ‘injury in fact,’ provided

this injury is alleged by a plaintiff having a sufficient

geographical nexus to the site of the challenged project

that he might be expected to suffer whatever environ-

mental consequences the project may have.”). A favor-

able outcome in this case would redress Bensman’s

injury in that he would have a greater likelihood of

stopping Forest Service projects that would impair his

use and enjoyment of national forests through access to

the administrative appeal process.

Lhat the alleged injury is within the “zone of interests”

sought to be protected by the ARA is also clear. See

United States Navy, 841 F.2d at 932. Congress directed

the Forest Service to give the “public adequate notice

Joa

and an opportunity to comment upon the formulation of

standards, criteria, and guidelines applicable to Forest

Service programs.” 16 U.S.C. § 1612(a). The language

of the statute demonstrates that Congress intended that

the Forest Service establish procedures facilitating

public involvement in lorest Service programs. The

injuries alleged by the Plaintiffs that they have been

precluded from meaningful involvement in Forest

Service project proposals—fall squarely within the

ARA’s zone of interest. Through the Heartwood or-

ganization member Bensman, Plaintiffs have standing

under Article [1] and tne APA to maintain this action.

Il. Ripeness

The Forest Service argues that the Court should

decline to adjudicate Plaintiffs’ claims because the

claims are nol ripe for decision. Docket No. 71 at 8-9.

Under the APA “lalgency action made reviewable by

statute and final agency action for which there i 10

other adequate remedy ina court are subject to judicial

review.” 3 U.S.C. § 704. “Itis the imposition of an obli-

gation or the fixing of a legal relationship that is the

indicium of finality of the administrative process.” Getty

Oi! Co.» Andrus, 607 F.2d 253, 256 (9th Cir. 1979); see

also Mt. Adams Veneer Co. v. United States, 896 F.2d

339, 343 (9th Cir. 1989) (outlining factors to consider in

determining finality).

The finality requirement is designed to protect

agencies from piecemeal appeals and to ensure hat ju-

dicial review does not extend to hypothetical disputes.

See Natl Wildlife Fed’n v. Goldsehmidt, 677 F.2d 259,

263 (2d Cir. 1982). The finality requirement does not,

however, preclude pre-enforcement review of agency

regulations. Abbott Labs. . Gardner, 387 US. 136, 14

Iba

52, 87S. Ct. 1507, 18 L. Ed. 2d 681 (1967), overruled on

other grounds hy Califano v. Sanders, 0 U.S. 99, 97S.

Ct. 980, 51 L. Ed. 2d 192 (1977).

Here, there can be little doubt that the eight

regulations challenged by Plaintiffs are “final” actions

by the Forest Service for purposes of the APA. The

regulations are the Forest Service's definitive position

on how to best implement the ARA and have been en-

forced on numerous occasions. Further, the impact of

the regulations on Plaintiffs are “sufficiently direct and

immediate as to render the issue/s] appropriate for

judicial review at this stage.” Abbott Lubs., 387 U.S. at

152, 87S. Ct. 1507. “There is no reason why the Court

must wait until a[n| |organization] member loses his

right to appeal before considering the validity of these

regulations.” Nall Treasury Employees Union ve. Corn-

elins, 617 F. Supp. 365, 367 (D.D.C. 1985) (finding ripe

for decision a challenge to the Office of Personnel Man-

agement’s rules on appeal procedures).

The purpose of the finality requirement would not be

served by disallowing a facial challenge in this context.

Were the Court to rule that these regulations are not

ripe for decision because they are being facially chal-

lenged, Plaintiffs could be faced with bringing multiple

lawsuits in multiple jurisdictions in order to challenge

the regulations as they are applied to specific projects-

and the Forest Service faced with defending against

them. This facial challenge promotes judicial economy

and is sufficiently particular to avoid judicial foray into

the hypothetical. Plaintiffs’ challenge to the eight For-

est Service regulations implementing the ARA is ripe

for decision. The Court will therefore address the

dia

merits of Plaintiffs’ contentions fegarding the

challenged Forest Service regulations.

Ill. Standard of Review

Before reaching the merits, however, the Court must

determine the appropriate level of deference to accord

the Forest Service's determinations. The Supreme

Court has instructed courts reviewing an agency's

construction of a statute, such as the ARA, to apply a

two-prong test. See Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Ine., 467 U.S. 837, 1048. Ct. 2778, 81

L. Ed. 2d 694 (1984). Under Chevron the reviewing

court must first examine the statute itself to determine

whether Congress has spoken directly to the precise

question. /d. at 842, 1045S. Ct. 2778. “If the intent of

Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” /d. at

$42-43, 104 S. Ct. 2778. When, however, an agency's

interpretation of a statute is in conflict with the plain

language of the statute, reviewing courts should not de-

fer to the agency’s interpretation. Downey v. Crabtree,

100 F.3d 662, 666 (9th Cir. 1996) (quoting Nat? RR.

Passenger Corp. v. Boston & Me. Corp., 503 U.S. 407,

417, 112 S. Ct. 1894, 118 L. Ed. 2d 52 (1992)).

Second, “if the statute 1s silent or ambiguous with

respect to the specific issue, the question for the court is

whether the agency's answer is based on a permissible

construction of the statute.” Chevron, 467 U.S. at 843.

104.5. Ct. 2778. “In determining whether an agency's

construction is permissible, the court considers whether

Congress has explicitly instructed the agency to flesh

out specific provisions of the general legislation, or has

impliedly left to the agency the task of developing stan-

4Sa

dards to carry out the general policy of the statute.”

Tevar v. United States Postal Sere., 3 F.3d 1271, 1276

(9th Cir. 1993).

If Congress has explicitly left a gap for the agency to

fill, there is an express delegation of authority to the

agency to elucidate a specific provision of the statute

by regulation. Such legislative regulations are given

controlling weight unless they are arbitrary,

capricious, or manifestly contrary to the statute.

Chevron, 467 U.S. at 848-44, 104 S. Ct. 2778: see also

Ass'n of Pub. Agency Customers, Inc. v. Bonneville

Power Admin., 126 F.3d 1158, 1169 (9th Cir. 1997)

(“When relevant statutes are silent on the salient

question, we assume that Congress has implicitly left a

void for an agency to fill. We must therefore defer to

the agency's construction of its governing statutes,

unless that construction is unreasonable.”).

Plaintiffs argue that with the exception of two sections

in the ARA, the language is plain and that therefore the

. Forest Service is not due any deference in its construc-

tion of the statute. As Lo the two sections that Plaintiffs

concede are ambiguous, they argue that the Forest Ser-

vice’s decisions should not be viewed deferentially be-

cause: (1) agency interpretations of statutory provisions

providing for review of agency decisions should not

receive deference; and (2) the challenged rules are in-

consistent with the agency's previous rules and there-

fore do not deserve deference. The Forest Service coun-

ters that Congress enacted the ARA with the intent that

the Forest Service “fill in the gaps” and that under these

circumstances the agency is due full Chevron deference.

Congress directed the Forest Service to develop reg-

ulations “establish{ing| procedures, including public

hearings where appropriate, to give the Federal, State.

and local governments and the public adequate notice

and an opportunity to comment upon the formulation of

standards, criteria, and guidelines applicable to Forest

Service programs.” 16 U.S.C. § 1612(a). The delegation

of rule-making authority is shown by the Forest Ser-

vice’s “power to engage in adjudication or notice-and-

comment rulemaking.” See United States v. Mead

Corp., 533 U.S. 218, 227, 121 S. Ct. 2164, 150 L. Ed. 2d

292 (2001). While the ARA provides some detail regar-

ding the content of the regulations the Forest Service

was to develop, it does not flesh out all of the par-

ticulars.

In such a case, the agency's promulgation of the sta-

tute through regulations is entitled to deference, and the

reviewing court must determine if the agency's con-

struction of the statute is “permissible.” See Cheeron,

467 U.S. at $43, 104 S. Ct. 2778. Thus the Forest Ser-

vice’s regulations must be upheld “unless they are arbi-

trary, capricious, or manifestly contrary to the statute.”

Id. at 844, 1048. Ct. 2778.

IV. The Challenged Regulations

Plaintiffs challenge the validity of eight Forest Service

regulations. They argue that: (1) the regulations

categorically excluding certain decisions from National

Environmental Policy Act (“NEPA”) analysis are

unlawfully exempted from appeal; (2) the regulation

exempting decisions signed by the Secretary and Under

Secretary of Agriculture from comment and appeal

violates the APA; (3) the ARA does not allow the Forest

Service to limit appeal standing to those whe have filed

bas

“substantive comments;” (4) the “most effective timing”

provision for public comment violates the ARA; (5) the

ARA does not permit the Forest Service to intentionally

refuse to decide an appeal; (6) “emergency situations”

may not be defined to include pure economic losses to

the government; (7) the ARA does not permit regional

foresters to make emergency stay exemption determin-

ations; and (8) the regulations improperly shorten the

stay period by five days. The claims are addressed in

that order.

A. Appeal Exclusion for Decisions Exempt From Preparation

of an BA or EIS Under NEPA

Plaintiffs argue that the Forest Service regulations

found at 36 C.F.R. §§ 215.4(a) and 215.12(f) violate the

ARA by exempting certain projects from appeal. The

sections exempt projects for which NEPA does not

require the preparation of an environmental assessment

(“EA”) or environmental impact statement (“EIS”). The

Forest Service counters that Congress delegated auth-

ority to the Forest Service to determine which projects

should and should not be subject to the notice, comment,

and appeal process. The Forest Service has reasonably

determined, so the argument goes, that projects that are

insignificant enough to not require an EA or EIS under

NEPA should not be subject to the notice. comment, and

appeal process.

‘The Forest Service is required to subject “projects and

activities implementing Jand resource management

plans” to administrative appeal. 16 U.S.C. § 1612(a). Be-

fore the ARA was passed the Forest Service made the

following subject to appeal:

;

Pow!

ee te eek ee eS ee ee

dla

|P|rojects and activities for which decision documents

are prepared, such as timber sales, road and facility

construction, range management and improvements,

wildlife and fisheries habitat improvement measures.

forest pest management activities, removal of certain

minerals or mineral materials, land exchanges and ac-

quisitions, and establishment or expansion of winter

sports or other special recreation sites.

36 C.F.R. § 217.3(b) (1992); 54 Fed. Reg. 3342, 3358

(Jan. 23, 1989). Pursuant to this regulation minor ac-

tions were approved without being subject to appeal. See

36 C.F.LR. § 217.3(a)(1) (1992). Certain of these exemp-

tions aligned with projects thal would be exempt from

an EIS or EA. See 57 Fed. Reg. 43180, 43208 (Sept. 18,

1992). However, certain projects that would not require

an EIS or EA under NEPA were explicitly included as

projects that would require a decision document and

therefore be subject to the appeal process. 54 Fed. Reg.

at 3355. Included among these were certain timber

harvests. /d. Subsequently, the Forest Service pro-

posed new rules that would exclude from the notice,

comment, and appeal process “any proposed action not

subject to environmental analysis and documentation in

an Environmental Assessment|.|" 57 Fed. Reg. 10444,

10446 (March 26, 1992). In response to this and other

Forest Service proposals, Congress enacted the ARA.

Under the Chevron analysis, the question presented is

whether the Forest Service's construction of the ARA to

permit the categorical exclusion of certain projects is a

permissible reading of the statute. See Chevron, 467

U.S. at 843, 1048S. Ct. 2778. The ARA certainly permits

exclusion of environmentally insignificant projects from

the appeals process. For example, actions such as

52s

maintaining Forest Service buildings or mowing ranger

station lawns need not be subject to the notice, com-

ment. and appeal procedures. 57 Fed. Reg. at 43208.

Actions that concern “land and resource management

plans,” however, “shall” be subject to notice, comment

and appeal procedures. ARA § (a). To read this plain

language as allowing exclusion of timber harvests is to

“read| | into the statute a drastic limitation that no-

where appears in the words Congress chose . . . .” See

Hercules, Lue. v. EPA, 938 F.2d 276, 280 (D.C. Cir. 1991)

(addressing the EPA's implementation of notice and cov-

enant requirements imposed by CERCLA). By the

Forest Service’s own definition, “land and resource

management plan{s}” are expected to contain “[b)road,

programmatic direction for a forest, grassland, or prai-

rie} |” including “identification of lands at the broad-

scale . . . suitable for timber harvest.” 67 Fed. Reg.

72.770, 72,773 (Dec. 6, 2002). Furthermore, the ARA

was drafted in direct response to the Forest Service's

1992 proposal to eliminate such appeals. While the For-

est Service is clearly not required to make every minor

project it undertakes subject to the appeals process, it

is required to delineate between major and minor pro-

jects in a way that gives permissible effect to the langu-

age of the ARA. The Forest Service rules codified at 36

C.F.R. §§ 215.4(a) and 215.12(f) are “manifestly

contrary” to the ARA. See Chevron, 467 U.S. at 843, 104

‘ oro

De Ct. -t td.

B. Exemption From Appeal of Decisions Signed by the Secre-

tary or Under Secretary of Agriculture

The Forest Service appeals rules provide that project

decisions that are signed directly by the Secretary or

Undersecretary of Agriculture constitute the final ad-

Te ee ee rae

te ei en) ts ee! tet At ee i eee a

‘

oda

ministrative determination by the Forest Service and

are therefore not subject to the notice, comment, and ap-

peal process, 36 C.F.R. § 215.20. The Forest Service

argues that this is not contraindicated by the ARA be-

cause the ARA requires an appeals process for “pro-

posed actions of the Forest Service,” not for actions of

the Secretary of Agriculture. See ARA § (a).

In Wilderness Society v. ey, 180 F. Supp. 2d 1141 (D.

Mont. 2002), a federal court squarely addressed this ar-

gument. /d. at 1147-48. The Rey court labeled the ar-

gument a “strained premise” based on the proposition

that the Secretary and Undersecretary are not “employ-

ee|s) of the Forest Service.” /d. at 1147. The court con-

tinued,

\bjy its plain language, the [ARA] requires the Sec-

retary to implement an appeal process for decisions of

the Forest Service on proposed actions of the Forest

Service concerning projects and activities implemen-

ting land and resource management plans. Title 7

C.F.R. 2.12 allows the Secretary to exercise authority

she has previously delegated, but it does not eliminate

the statutory right to an appeal of a Forest Service

decision codified in the [ARA]. The Secretary is requi-

red by statute to have an administrative appeal pro-

cess; the regulation does not alleviate her statutory

duty. Simply having the Undersecretary or Secretary

sign a record of decision of the Forest Service does not

diminish the fact that the record of decision is a deci-

sion of the Forest Service. To hold otherwise defies

common sense.

Id. at 1148.

The Forest Service, like most government agencies, fa-

ces constant pressure to pare down administrative costs.

The Court is sensitive to the challenges presented by

such an endeavor. The Forest Service cannot, however,

attempt to streamline its appeals process by creating an

escape hatch that thwarts congressional intent. As the

Rey court stated, “|t|he notion that a signature by the

Undersecretary transforms the action from Forest

Service business to the business of some othe

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