# Record and brief — Summers v. Earth Island Institute

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0033%3A0

## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 2009
- **Citation:** 555 U.S. 488

## Text

No. 07-463

Title: Priscilla Summers, et al , Petitioners
V.
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

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

a~

. 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

i,

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)

Vl

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
v.
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)

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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.

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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.

6

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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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

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“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

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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

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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.”

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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

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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.

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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
3

~ 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.

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* 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.

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24

| 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

26

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

27
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

28

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 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 .

Ba

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
v.

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:

is

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

4
|
|
:

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

*
7
.
;
4
a

“
,

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-

|
q
3
:
j

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
designed by the Court. The invalidated regulations
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.

ld
ia

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

3a

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.

ro

* 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

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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:

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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.

Wa

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
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“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:

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|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-

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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.

5a

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 other agency is
mystical legal prestidigitation. The decision, not the sig-
natory, is the operative fact for purposes of the [ARA].”
Id. The Forest Service's reading of Congress's directive
to provide an appeal process for decisions of the Forest
Service as not including decisions signed directly by the
Secretary or Undersecretary of Agriculture is not a per-
missible interpretation. See Chevron, 467 U.S. at $43,
1048. Ct. 2778.

C. Persons who may File an Appeal

The ARA preserves the right of appeal to “a person
who was involved in the public comment process under
subsection (b) through submission of written or oral
comments or by otherwise notifying the Forest Service
of their interest in the proposed action.” ARA §(c). The
Forest Service implemented this provision of the ARA
with the following regulation: “Individuals and or-
ganizations wishing to be eligible to appeal must provide

. {s}pecific substantive comments . . . on the
proposed action, along with supporting reasons that the
Responsible Official should consider in reaching a
decision.” 36 C.F.R. §215.6(an3). Plaintiffs argue that
this language violates the ARA in two ways. T’irst, they
contend that the Forest Service impermissibly added

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55a

the requirement that comments be “substantive,” rather
than merely sufficient to have “notiflied| the Forest Ser-
vice of their interest in the proposed action.” Second,
Plaintiffs argue that the way the Forest Service has
formulated the relevant time period for submission of
“substantive” comments may run before any envi-
ronmental assessment is available to the public.

Thus, Plaintiffs argue, a person may not become aware
that they are an interested party until after the period
for submission of substantive comments has passed. The
Court will first address the time period for submission
of comments before turning to the “substantive require-
ment.”

1. Timing of Legal Notice of Comment Period

General notice of proposed rule making by agencies
must include: “(1) a statement of the time, place, and
nature of public rule making proceedings; (2) reference
to the legal authority under which the rule is proposed;
and (3) either the terms of substance of the proposed
rule or a description of the subjects and issues in-
volved.” 5 U.S.C. §543(b). The APA does not mandate
a minimum comment period nor does it specify when
notice is optimally given. See Riverbend Farms, Luc. ev.
Madigan, 958 F.2d 1479, 1484 (9th Cir. 1992).

The Forest Service regulations implementing the ARA
provide that the Responsible Official shall “|d|etermine
the most effective timing for publishing the legal notice
of the proposed action and opportunity to comment.” 36
C.F.R. § 215.5(a¥2). It is not feasible for the Forest
Service to publish legal notice indefinitely or even for
protracted periods of time. The timing provision is not
an attempt to end-run the notice and comment require-

, .
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aba

ments of the ARA and is a permissible reading of Con-
gress’s directive.

2. The “Substantive” Requirement

The Supreme Court has long recognized that agencies
may impose a substantive threshold on those seeking to
participate in proposed agency actions. See Vt. Yankec
Nuclear Power Corp. v. Natural Res. Def. Council, Ine..
435 U.S. 519, 553-54, 98 S. Ct. 1197, 55 L. Ed. 2d 460
(1978). Administrative proceedings are not designed tu
be “a game or a forum to engage in unjustified obstruc-
tionism by making cryptic and obscure reference to
matters that ‘ought to be’ considered.” /d. Agencies
have discretion to screen out “unjustified obstruction-
ism” by requiring expressions of interest to be “suf-
ficient Lo require reasonable minds Lo inquire further.”
Id. at 554, 98S. Ct. 1197.

The Forest Service defines “substantive comments” as
“[cljomments that are within the scope of the proposed
action, are specific to the proposed action, have a direct
relationship to the proposed action and include sup-
porting reasons for the Responsible Official to consider.”
36 C.FLR. § 215.2. The Forest Service has explained
that the “substantive” requirement is intended to both
streamline the notice and comment process and focus
the attention of the Forest Service on helpful, pertinent
comments

Experience has shown that when comments are re-
ceived that are not within the scope of the proposea
action or are not specific to the proposed action, or
do not include supporting reasons for concerns,
they are not useful for consideration in project
planning. The intent in requiring substantive com-

°F

ola

ments is to obtain meaningful and useful infor-
mation from individuals about their concerns and
issues, and use it to enhance project analysis and
project planning.
68 Fed. Reg. 33,582, 33,587 (June 4, 2003). ‘The Forest
Service's attempt to avoid wasting resources on “cryptic
and obscure” matters and to focus instead on “mean-
ingful and useful” comments is within the Agency's
discretion and does not violate the precepts of the ARA.
See Vt. Yankee Nuclear Power, 435 U.S. at 553-54, 98 S.
Ct. 1197; 68 Fed. Reg. at 33,587. As this is a facial
challenge, the exact parameters of what “substantive”
means are not clear. Whether the Forest Service has
imposed an unduly heavy burden on would be parti-
cipants with the “substantive” requirement will have to
be fleshed out in as-applied challenges. In the facial
challenge context, the “substantive” requirement is a
permissible reading of the ARA.

D. Affirmance Without Decision

Plaintiffs argue that the Forest Service has stripped
the right of appeal out of the ARA by enacting 36 C.F.R.
§ 215.18(b). Docket No. 70 at 17. Under that provision,
the Appeal Deciding Officer will either:

(1) Issue a written appeal decision within 45 days
following the end of the appeal-filing period, which
affirms or reverses the Responsible Official’s decision,
either in whole or in part, and which may include
instructions for further action . . . The Appeal
Deciding Officer shall send a copy of the appeal
decision to the appellant(s), the Appeal Reviewing
Officer, and the Responsible Official within 5 days; or

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(2) Not issue an appeal decision and so notify the
appellant(s) in writing that an appeal decision will not
be issued and that the Responsible Official’s decision
constitutes the final agency action of the Department
of Agriculture (§ 215.14(e)(2)). Notification shall be
sent no sooner than 46 days nor later than 50 days
following the end of the appeal—filing period.

36 C.FLR. § 215.18(b). The regulation further states that
the “appeal disposition constitutes the finai administra-

tive determination of the Department of Agriculture.”
36 C.PLR. § 215.18).

The ARA provides some detail on how appeals are to
be dispatched. If an appeal is not disposed of through
mectings with the appellant, an appeals review offiver
“review! s| the appeal and recommend|s| in writing, to
the official responsible for deciding the appeal, the
appropriate disposition of the appeal.” ARA § (d)(2).
The official responsible for deciding the appeal then
makes the decision. /d. However, if the decision is not
made within forty-five days, the ARA requires that “the
decision on which the appeal is based . . . be deemed
to be a final agency action for the purposes of [the
APA.” 7d. § (d)(4). Final agency action is, of course,
judicially reviewable. See 5 U.S.C. § 704.

Plaintiffs argue that “not issu[ing] an appeal decision”
essentially eviscerates the ARA by eliminating admin-
istrative appeals. Docket No. 70 at 17. The Court is not
convinced, In this instance the Forest Service's imple-
menting regulation is little more than a paraphrase of
the relevant provisions of the ARA. Both provide that
when an appeal decision is not timely it constitutes a
summary affirmance of the decision made by the respon-
sible official.

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Compare ARA & (di4) (“| T |he decision on which the
appeal is based shall be deemed to be a final agency
action .. . ”), with 36 C.F.R. § 215.18(b\(2) (“[Tjhe Re-
spénsible Official’s decision constitutes the final agency
action of the Department of Agriculture.”). When such
affirmance occurs, appellants may pursue the matter in
federal court. The implementing regulation is virtually
identical to the language of the ARA and is therefore a
“permissible” reading of the statute. See Chevron, 467
US. at 843, 104.8. Ct. 2778.

E. Emergency Stay Provisions

Plaintiffs’ next set of arguments relate to the Forest
Service regulations implementing the automatic stay
provision of the ARA. See Docket No. 70 at 18-22. The
provision states:

(e) STAY.—Unless the Chief of the Forest Service
determines that an emergency situation exists with
respect to a decision of the Forest Service,
implementation of the decision shall be stayed
during the period beginning on the date of the
decision—

(1) for 45 days, if an appeal is not filed, or

(2) for an additional 15 days after the date of
the disposition of an appeal under this section,
if the agency action is deemed final under
subsection (d)(4).

ARA § (e). Plaintiffs argue that the Forest Service has
impermissibly restricted this provision by: (1) defining
“emergency situation” to include situations involving po-
tential economic loss; (2) allowing regional foresters,
rather than exclusively the Chief of the Forest Service,

60a

Lo declare an emergency situation exemption from the
stay provision; and (3) shortening the stay period by five
days. See Docket No. 70 at 18-22. The arguments are
addressed ia order.

1. Emergency Situations and Economic Loss
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 NFS 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 CLLR. 215.2. Plaintiffs argue that the inclusion of
“substantial loss of economic value” in the definition of
“emergency situauon” is an attempt by the Forest
Service to avoid the appeal process when it comes to
salvage timber sales. The Forest Service responds that
because “emergency situation” is not defined in the
ARA, the Forest Service's definition must be upheld
under Chevron because it is not “manifestly contrary to
the statute” and that the provision was designed to avoid
having to remove fire-damaged timber at taxpayer ex-
pense. See Docket No. 71 at 26-29.

The definition of an “emergency” is “an unforeseen
combination of circumstances or the resulting state that
calls for immediate action,” or “an urgent need for
assistance or relief.” Merriam-Webster Online avarlahle
at http:/www.m-w.com. The position of the Forest Ser-
vice that “substantial loss of economic value” “calls for

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immediate action” is not an impermissible reading of the
ARA. See Chevron, 467 U.S. at 843, 104 S. Ct. 2778.

2 Who May Declare an Emergency Situation

Plaintiffs’ next argument relating to the emergency
stay provisions of the ARA is that the Forest Service
permits subordinates of the Chief of

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0033%3A0. Public record. Not legal advice.