Opposition Brief — Southern Timber Purchasers Council v. Meier

No. 93-418

Supreme Court, US. |

ED

38

;

-

Jn the Supreme Court of the Chuted States

OCTOBER TERM, 1993

SOUTHERN TIMBER PURCHASERS COUNCII

» ET AL,

PETITIONERS

MARVIN C: MEIER, ACTING REGIONAL FORESTER, ET AL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUII

BRIEF FOR THE RESPONDENTS IN OPPOSITION

DREW S. DAYS, II]

Solicitor General

Lois J. SCHIFFER

Acting Assistant Attorney General

JACQUES B. GELIN

WILLIAM B. LAZARUS

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioners’ claims for declaratory and

injunctive relief against a temporary policy that re-

stricted timber harvesting methods in habitat areas of a

particular endangered species are moot because the

challenged policy is no longer in effect.

2. Whether the court of appeals erred in determining

that petitioners lacked standing to sue for alleged

violations of the National Environmental Policy Act, the

Endangered Species Act, and the National Forest Man-

agement Act.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Allen v. Wright, 468 U.S. 737 (1984) ...........cccccccsseseeceees 21

Babbitt v. United Farm Workers National Union, 442

Rk conunauennesonsaoenecersores 21

Ballerina Pen Co. v. Kunzig, 483 F.2d 1204 (D.C. Cir.

1970), cert. dismissed, 401 U.S. 950 (1971) ......0.0.0.... 24

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

Nee i i as sas ss conn pnidiointoinencenenenes 16

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ........ 14, 16, 21

Deakins v. Monaghan, 484 U.S. 193 (1988) ..............000 12

Idaho Conservation League v. Mumma, 956 F.2d 1508

I TIT Silane nineipencbetebrecesreceevertbensersvsevesereess 3, 22, 23

Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67 (1983) .. 14

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ..... 12, 14

Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992) ...... 12

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

EET NOES 8 of SRE 22

National Helium Corp. v. Morton, 455 F.2d 650 (10th

Sat Scat bncecicabacieuebugebonetiotesedersevesnceseneeceoevecceoneneceoss 17, 18

Northeastern Florida Chapter of Associated General

Contractors v. City of Jacksonville, 113 S. Ct. 2297

a 23, 24

O’Shea v. Littleton, 414 U.S. 488 (1974) .............cccceeeeees 20

Sierra Club v. Morton, 405 U.S. 727 (1972) ..............000 18

Simon v. Eastern Kentucky Welfare Rights Organization,

a eenonbensterasnvene 22

IV

Cases—Continued: Page

United States Parole Comm’n v. Geraghty, 445 U.S. 388

CRETE wosiowssidnshninetsntisinbadeiesiciiedeienencesnamaipeadactinmniinennenanis 12

Wabash Valley Power Ass’n v. Rural Electrification -

Admin., 903 F.2d 445 (7th Cir. 1990) ..............cceeeeee 17

Warth v. Seldin, 422 U.S. 490 (1975) .0......... cece eeeeeeees 21, 22, 24

Weinstein v. Bradford, 423 U.S. 147 (1975) .............0. 14, 15

Whitmore v. Arkansas, 495 U.S. 149 (1990) 0.0... 21, 22

Constitution, statutes and regulations:

Rea as IE EP steinienieniditesdinetionatenaicabioniasssapiaeceamannnies 20

Administrative Procedure Act, 5 U.S.C. 701 et seq.:

> aaa I aiiestanichadsiduanieeaabaaaieiinaaasauadeidudibiduacannddadtitabbieined 20

© ‘SED Pe csankscindeorbacedsnsobuiecnsdatassescbanunnnausceuniunendesiens 20

Contract Disputes Act of 1978, 41 U.S.C. 601 et seq. ........ 5, 18, 20

a SR as SD inctintcinsehidsinpanceeisauaadcncnesitiiannenbicebidiedainess 18

41 U.S.C. 609(a)(1) (Supp. TV 1992) .............ceccccceeeeees 11, 18

Endangered Species Act of 1973, 16 U.S.C. 1531 et seq. ... 2

SF; Se ee ae SIE stonetieciscenteeetadeccenisitocinisnniéen 2

Se Oe ay GENE cedesectnctcnvsresercsntcistesinnsdemniic 2

Aisa Sa HUE aaiiddcadaddinidnceniapnatnemnninsebniinninenssonan 2

Bie ee Ses. SIN eiteicsdirerineietencainniuddncninnessaicdienis 3, 4

DFR See ED ertteccncrnncinnenvvcnsensenestniies 2,5

§ gt ee ee Sets SOE iccicnsissiwencessenniaticnnnesenes 2

© RR, Bee Ceeieae Se cecreverettcrsvenrtenicentsnnnsiansemntinnines 8

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

Se Oe QI, sanceninteeedcarnidiemnstnnentinninnrreniiniaannets 2

ae Sas SEED ‘snscisthendivecinenckiceinadsntmsentameunmess 2

National Forest Management Act of 1976, 16 U.S.C. 1600

GE GOB .. cccccmrsecsnceerereseaseressensuevesecncnreeevesecsscessncuseneoonenenenees 3

Pe BP IEE scditinentnseeuienndsannibenneaideedinndinine: 3

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Be EP ai: IID cada sssnnsiadensedersonnndcadgenbsertccaneimunecatins 3

Be Rie: IED Sencesencctcrcencieninrnimininecdeusiinetenencotainens 17, 18, 19

36 C.F.R.:

BID Ser NITED ccsundicndsicaniccusinsdetalionteudeiiatensoinabidenniadsen 8

FRIEND SUUDIIIEED ‘nishwcseenedecsensnenuincnbenaseennicnnadecsnaneniantes 9

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tegulations—Continued Page

40 C.F.R.:

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In the Supreme Court of the Cinited States

OCTOBER TERM, 1993

No. 93-418

SOUTHERN TIMBER PURCHASERS COUNCIL, ET AL..

PETITIONERS

v.

MARVIN C. MEIER, ACTING REGIONAL FORESTER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

21a) is reported at 993 F.2d 800. The district court’s

July 29, 1991, order (Pet. App. 22a-40a) is reported at

779 F. Supp. 1353. The district court’s August 8, 1990,

orders (Pet. App. 4la-50a, 5la-59a) are unreported.

The district court’s April 23, 1990, order (Pet. App.

60a-74a) is reported at 736 F. Supp. 267.

JURISDICTION

The judgment of the court of appeals was entered on

June 21, 1993. The petition for a writ of certiorari

was filed on September 16, 1993. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. a. The Endangered Species Act of 1973 (ESA),

16 U.S.C. 1531 et seq., requires the Secretary of the

Interior to identify species that are “endangered,”

i.e., in danger of extinction throughout a significant

portion of their range. See 16 U.S.C. 1532(6), 1532(20),

1533. Section 7(a)(2) of the Act requires each federal

agency to ensure that agency actions are “not likely

to jeopardize the continued existence of any endan-

gered species.” 16 U.S.C. 1536(a)(2). Thus, federal

agencies are prohibited from authorizing, funding, or

carrying out any “action” that is “likely to jeopardize

the continued existence of” any endangered species.

To ensure that those prohibitions are respected,

Congress established a procedural “consultation”

requirement. Under that procedure, the responsible

agency consults with the U.S. Fish and Wildlife

Service (F WS) of the Department of the Interior to

determine whether (and to what degree) there may be

adverse effects on a particular species as a result of

the contemplated agency action. 16 U.S.C. 1536(a)-(d).

_b. The National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. 4321 et seq., requires federal agen-

cies to “include in every recommendation or report on

* * * major Federal actions significantly affecting the

quality of the human environment, a detailed state-

ment by the responsible official on * * * (i) the

environmental impact of the proposed action.” 42

U.S.C. 4832(2)(C). The Council on Environmental

Quality (CEQ) has issued regulations governing an ~

agency’s decision to prepare such an Environmental

Impact Statement (EIS) for a proposed action. 40

C.F.R. Pts. 1501, 1502.

a a ee

ec. The National Forest Management Act of 1976

(NFMA), 16 U.S.C. 1600 et seq., requires the Forest

Service to develop “land and resource management

plans” for each unit of the National Forest System.

16 U.S.C. 1604(a). Those forest plans must provide for

a sustained yield of resources and for multiple use of

National Forest lands, including “coordination of

outdoor recreation, range, timber, watershed, wildlife

and fish, and wilderness.” 16 U.S.C. 1604(e)(1). The

development of each such plan, and of any “sig-

nificant” amendment to a plan, is subject to a set of

specified procedures before adoption, including

preparation of a draft and a final EIS for any proposed

or “significant[ly]” amended plan. See 16 U.S.C.

1604(g); 36 C.F.R. 219.10(b) and (f).

Each forest plan provides general goals and objec-

tives, and also establishes standards and guidelines to

govern actions and activities, such as timber har-

vests, that take place in the forest. Those standards

and guidelines are intended to protect resources such

as threatened and endangered species, and are adopted

following consultation with the FWS in accordance

with Section 7(a) of the ESA.

A forest plan is essentially a programmatic state-

ment of intent that operates prospectively. It

establishes basic guidance and sets forth the planning

elements that the Forest Service will employ in

making future site-specific decisions. See Idaho

Conservation League v. Mumma, 956 F.2d 1508, 1511-

1512 (9th Cir. 1992). The plan, however, does not

constitute assurance that the plan’s output targets

will be achieved. Rather, actual output levels will be

affected by such variables as economic conditions,

funding levels, and site-specific circumstances con-

4

cerning the particular actions that may be proposed.

Furthermore, unless it states otherwise, a plan does

not constitute a decision to undertake any particular

site-specific action.

2. a. The red-cockaded woodpecker (RCW) ranges

in the southeastern United States—from Virginia,

along the coastal plain, into Texas. The bird is depen-

dent on several species of southern pines for nesting

and foraging, and it lives in groups called clans, whose

members inhabit the cavities excavated in a group of

trees known as a colony site. The bird needs foraging

habitat with certain specific characteristics in close

proximity to the colony site. Pet. App. 2a-3a.

Extensive clearing of southern pine forests has

reduced available habitat for the RCW and brought it

to the brink of extinction. The species accordingly

was listed as endangered in 1970. The vast majority

of the remaining clans of the bird occupy colony sites

that are on federal lands, principally in the various

National Forests in the Southern Region (Region 8)

of the National Forest System. Pet. App. 3a.

Since 1985, the Southern Region has undertaken to

protect the RCW in accordance with the most recent

revision of the RCW Chapter of the Forest Service

Wildlife Habitat Management Handbook. The RCW

chapter was prepared through formal consultation

with the FWS under Section 7(a) of the ESA, 16

U.S.C. 1536(a). It is based upon the Red-Cockaded

Woodpecker Recovery Plan issued in 1985 by the

FWS, and provides measures to protect and conserve

the bird. The Forest Service incorporated the RCW

chapter into the forest plans for those forests having

RCW populations. Pet. App. 3a-4a.

5

b. The Forest Service and the petitioner timber

companies entered into timber sale contracts subject

to the 1985 handbook chapter. Those contracts con-

tain an endangered species provision specifying that

“li]f protection measures prove inadequate, * * * [the]

Forest Service may * ** unilaterally modify this

contract to provide additional protection” for an

endangered species. Timber Sale Contract provision

CT6.25#, reproduced in Defendants’ Motion to Dis-

miss, Exhs. 3-5 (filed Feb. 12, 1990). The contracts

also include a disputes clause stipulating that the

Contract Disputes Act of 1978, 41 U.S.C. 601 et seq., is

applicable to “all disputes arising under or relating to

thle] contract” (contract provision CT9.2(b)), as well

as a provision permitting either party to seek

modifications by agreement for any reason (contract |

provision BT8.3).

Subsequent to the adoption of forest plans and the

award of contracts subject to the 1985 handbook

chapter, the Forest Service learned from updated

RCW inventories that RCW populations in several

National Forests were unstable or declining. Com-

pare Administrative Record, Tab 20 (AR 20) (1986

RCW colony data) with AR 24, at 2 (1988 RCW colony

data). That information, coupled with the Forest

Service’s obligation under Section 7(a)(2) of the ESA

to ensure that agency actions are “not likely to

jeopardize the continued existence of any endangered

species,” 16 U.S.C. 1536(a)(2), caused the Regional

Forester of Region 8 to develop a new RCW-protec-

tion strategy, in coordination with both petitioner

Southern Timber Purchasers Council (then known as

the Region 8 Forest Service Timber Purchasers

Council) and the Sierra Club Legal Defense Fund.

6

Pet. App. 4a, 97a; see also AR 34, 37, 38, 49, 51, 56, 58,

59, 64, 66.

The Regional Forester’s new strategy for protec-

tion of the RCW in Region 8 was announced on March

27, 1989. Pet. App. 4a, 98a. The strategy included

three phases:

(1) the immediate adoption of a temporary

“policy on cutting on existing timber sale con-

tracts within 3/4 mile of active and inactive RCW

colonies,” to be “implemented within active popu-

lations [of] less than 250 active colonies” (Pet.

App. 98a);

(2) the development and issuance of “Interim

RCW Guidelines * * * which will supersede the

existing RCW Handbook direction for those areas

within 3/4 mile of RCW Colonies in populations

with less than 250 active colonies,” and which

“will apply to future sales and currently adver-

tised or proposed sales that have been withdrawn

and will remain in effect until the Region 8

Regional Guide is amended” (id. at 99a); and

(3) amendment of the Region 8 Regional Guide

(ibid.).

The strategy’s first phase—adoption of the temporary

policy at issue in this case—was intended to

“supplemen|t]” the handbook by “establishling] new

protection measures for the endangered red-cockaded

woodpecker determined necessary to ensure that any

action authorized, funded or carried out by the Forest

Service is not likely to jeopardize its continued exis-

tence.” Jd. at 98a. That temporary policy was made

applicable to already awarded sales, as well as “award

7

pending” contracts, advertised timber sales, and

proposed sales. Jd. at 99a-105a.

The temporary policy limited the pérmissible

methods for timber harvesting within 3/4 mile of a

colony site. It also directed the contracting officer

immediately to request affected purchasers “to sus-

pend all logging operations on the affected payment

units” in accordance with contract provision CT6.25#,

and immediately to begin modifying existing con-

tracts “to align them with the policy.” Pet. App. 102a-

103a. The policy stated a strong preference for

“modify[ing] the contract by mutual agreement under

BT8.3 to delete individual payment units,” and it

directed the contracting officers to “[mJake maximum

possible effort to provide timber for deleted volumes”

by mutual contract modification. Jd. at 103a. The

policy, however, also permitted both unilateral con-

tract modification under the provision for protection

of endangered species, and cancellation of contracts

“if the modification changes the sale conditions

significantly and the purchaser is unable to recover

the original profit margin.” /d. at 104a.

Petitioners had a total of nine contracts subject to

the policy. In light of issuance of the policy, petition-

ers agreed to modify each of those contracts by

substituting other timber lands for those affected by

the policy and/or by reducing the payments due to the

Forest Service under the contract. Defendants’

Motion to Dismiss, Exhs. 6-14 (filed Feb. 12, 1990).

3. On March 31, 1989, petitioner Southern Timber

Purchasers Council (Council) administratively chal-

lenged the Regional Forester’s March 27, 1989,

issuance of the temporary policy, alleging violations

of NEPA, NFMA, and the Administrative Procedure

8

Act (APA). AR 30. On April 14, 1989, the Forest

Service Deputy Chief ruled that adoption of the policy

was not subject to administrative appeal under the

applicable regulation, 36 C.F.R. 217.3(a)(1). Pet. App.

94a-96a. At the same time, however, the Deputy Chief

directed the Regional Forester to “conduct an envi-

ronmental analysis and then prepare the appropriate

decision document for the policy,” with appropriate

reference to compliance with ESA, NEPA, and

NFMA in establishing the policy. Jd. at 95a. The

Regional Forester subsequently complied with that

directive by issuing a biological evaluation on May 3,

1989 (AR 24), and by issuing NEPA and NFMA

decisions that “document the rationale and environ-

mental consideration for” the policy on June 26, 1989.

AR 16, at 1.

On July 12, 1989, the Council administratively

appealed the Regional Forester’s June 26 decision,

asserting that the decision and the March 1989 policy

violated NEPA, the APA, NFMA and its implement-

ing regulations, and the ESA. AR 138. The Council’s

request for a stay of the decision (AR 13, at 1, 21) was

denied on July 25, 1989. AR 8. On September 1, 1989,

the Council also sent a letter to the Secretaries of

Agriculture and the Interior purporting to give

notice of petitioners’ intent to file a citizen suit under

16 U.S.C. 1540(g) for alleged violations of the ESA.

AR 3B.

On October 25, 1989, the Associate Deputy Chief of

the Forest Service affirmed the Regional Forester’s

June 26 decision. Pet. App. 75a-93a. The decision

rejected the Council’s claims of NEPA, ESA, and

NFMA violations, and it emphasized the reasonable-

ness of preserving the environmental status quo “[i]n

‘il

9

the face of small, unstable, and declining RCW popula-

tions.” Id. at 89a. Because the Secretary of Agricul-

ture elected not to conduct discretionary review of

the decision, the Associate Deputy Chief's decision

was “the final administrative decision of the Depart-

ment of Agriculture.” 36 C.F.R. 217.16(e).

4. On December 7, 1989, petitioners filed a com-

plaint for declaratory and injunctive relief in the

United States District Court for the Northern Dis-

trict of Georgia. The complaint purported to “chal-

lenge two actions by [respondents] regarding the red-

cockaded woodpecker” (C.A. R.E. 13, 9 1): (1) “the

Forest Service Region 8’s failure to fully implement”

the RCW chapter in the 1985 handbook, which

petitioners asserted to have been a violation of the

ESA (id. at 14, J 2); and (2) the “illegal adoption” of

the March 1989 policy, which they asserted to have

violated the ESA, NFMA, and NEPA (id. at 14-

15, 3).

On April 23, 1990, the district court dismissed

petitioners’ NEPA claims for lack of standing. Pet.

App. 60a-74a. The court concluded that petitioners

were not within the “zone of interests” protected by

NEPA, because their “interests are so marginally

related to or inconsistent with the purposes implicit

in the statute that it cannot reasonably be assumed

that Congress intended to permit the suit” to proceed.

Id. at 66a.

On August 8, 1990, the court dismissed petitioners’

ESA claims. Pet. App. 5la-59a. Thereafter, the court

granted summary judgment for the government on

petitioners’ remaining claims. /d. at 22a-40a. The

court entered judgment on July 30, 1991.

10

5. On May 25, 1990, during the pendency of the

district court litigation, the Forest Service imple-

mented the second phase of its new strategy for

protection of the RCW by issuing Interim Standards

and Guidelines for the management of RCW habitat.

Pet. C.A. Br. addendum, Tab 7, at 2. The interim

standards supersede the temporary policy at issue in

this case. The issuance of the new standards and

guidelines followed an opportunity for public comment

and review by the FWS, and it was accompanied by

new decision documents, including a decision notice,

an environmental analysis (EA), and a biological

evaluation. Jd. at 2, 4.

The district court rejected the government’s

contention that petitioners’ challenge to the tem-

porary policy was rendered moot when that policy was

superseded by the Interim Standards and Guidelines.

Pet. App. 57a-58a. The Council administratively

challenged the Interim Standards and Guidelines, but

that challenge was rejected by the Department of

Agriculture in a final decision issued October 24,

1991. See Pet. C.A. Br. addendum, Tab 7. Petitioners

apparently have not sought judicial review of that

decision.

6. The court of appeals affirmed the district

court’s judgment dismissing petitioners’ claims. Pet.

App. la-2la. Although petitioners asserted that the

Forest Service’s temporary policy caused them to

suffer economic, environmental, procedural, and

“quality of life” injuries (id. at 8a-9a), the court con-

cluded that petitioners had “failed to establish an in-

jury to themselves sufficient to confer standing.” /d.

at 20a.

11

The court of appeals first rejected petitioners’

reliance on the alleged economic injuries resulting

from issuance of the temporary policy. Pet. App. 13a-

14a. Petitioners claimed that the policy reduced the

quantity of timber available under their timber

contracts with the Forest Service and increased their

costs under those contracts. The court concluded,

however, that because the contracts explicitly provide

that “all disputes arising under or relating to” the

contracts must be resolved pursuant to the process

set forth in the Contract Disputes Act, which vests

judicial review exclusively in the Court of Federal

Claims (41 U.S.C. 609(a)(1) (Supp. IV 1992)), petition-

ers could “not predicate their standing to sue * * *

upon contractual injuries.” Pet. App. 14a.

In addition, the court rejected petitioners’ claims of

standing based on economic injury relating to future

timber contracts, both because “the Council and

Timber Companies have no right to compel the Forest

Service to sell any future timber to them” and

because, even if they had such a right, “there is not a

‘substantial likelihood’ that this injury will be

redressed by the relief they seek.” Pet. App. 15a. The

court also rejected petitioners’ claims of “quality of

life” injuries, explaining that those claims were

“simply attenuated versions of the economic injuries”

asserted by petitioners, and therefore “suffer from

the same infirmities.” /d. at 16a.

The court held that petitioners’ claims of environ-

mental injuries were insufficient to support standing

because those claims amounted to “nothing more than

an interest in developing [RCW] strategies, and a

mere interest in a problem, no matter how longstand-

ing the interest, is insufficient to confer standing.”

12

Pet. App. 17a. The court likewise rejected petition-

ers’ attempt to assert the interests of their employ-

ees in the outdoors, noting that plaintiffs generally

“must assert their own rights and may not rest upon

the rights of others” and that the requirements for

third-party standing were not satisfied in this case.

Id. at 18a. Finally, relying on Lujan v. Defenders of

Wildlife, 112 S. Ct. 2130 (1992), the court held that

petitioners could not base standing on claims of

procedural injury without also showing injury to

separate, concrete interests. Pet. App. 19a-20a.

ARGUMENT

1. Petitioners contend that the court of appeals

erred in holding that they lacked standing to

challenge the Forest Service’s temporary policy

adopted in March 1989. There is no reason for this

Court to consider that contention, however, because

petitioners’ claims with regard to the temporary

policy are moot.

a. A case becomes moot, and thus nonjusticiable,

“when the issues presented are no longer ‘live’ or the

parties lack a legally cognizable interest in the out-

come.” United States Parole Comm’n v. Geraghty,

445 U.S. 388, 396 (1980). Moreover, “i]t is not enough

that a controversy existed at the time the complaint

was filed.” Deakins v. Monaghan, 484 U.S. 193, 199

(1988). “The parties must continue to have a ‘“per-

sonal stake in the outcome”’” at all stages of a case.

Lewis v. Continental Bank Corp., 494 U.S. 472, 477-

478 (1990).

Petitioners do not currently possess a “legally

cognizable interest” or “personal stake” in the out-

13

come of this case.’ The only remedies petitioners

sought with respect to their claims of economic

injury were a declaration that the temporary policy

was invalid, an injunction against its enforcement,

and a remand to the Forest Service to reconsider the

policy. C.A. R.E. 30, 99 1, 2, and 5 (Complaint,

Request for Relief). The temporary policy is no

longer in effect, however, having been superseded by

the Interim Standards and Guidelines more than

three years ago, on May 25, 1990. Thus, petitioners’

alleged economic injuries would not be alleviated even

if they were to receive the relief they seek.

Moreover, petitioners voluntarily modified their

timber contracts by mutual agreement with the

Forest Service in order to facilitate compliance with

the temporary policy, and they did so long before

filing their complaint in this case. See Defendants’

Motion to Dismiss, Exhs. 6-14 (filed Feb. 12, 1990). As

part of those contract modifications, petitioners

received ample consideration, in the form of additional

areas to be logged and/or reductions in their payment

obligations to the Forest Service, in exchange for

their agreements to modify the contracts. /bid. In

accepting the benefits provided by the contract modi-

fications, petitioners have already been compensated

for any asserted injuries resulting from issuance of

the temporary policy. They thus have no live claim

' The district court rejected the government’s assertion of

mootness. Pet. App. 57a-58a. The court of appeals did not

address the mootness issue in its decision, although we have

been informed that the issue was raised at oral argument.

14

with regard to their preexisting contracts for which

they could obtain relief.’

In these circumstances, petitioners’ claims for

injunctive and declaratory relief with regard to the

temporary policy are moot. Petitioners are not

suffering any present injury that could be remedied

by granting them the relief they seek, and thus they

have no “‘specific live grievance’ against the applica-

tion” of the policy. Lewis v. Continental Bank Corp.,

494 U.S. at 479. This Court therefore lacks jurisdic-

tion to adjudicate petitioners’ claims. Jron Arrow

Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983) (per

curiam).

b. The district court recognized that the tempo-

rary policy had ceased to be effective due to its

replacement by the Interim Standards and Guidelines,

but found petitioners’ challenges to the policy

nonetheless justiciable under the exception to the

mootness doctrine that permits adjudication of claims

that are “capable of repetition, yet evading review.”

Pet. App. 57a-58a; see Weinstein v. Bradford, 423

U.S. 147, 149 (1975) (per curiam). The court justified

its conclusion on the grounds that “[petitioners] may

reasonably expect that [the government] will signifi-

cantly alter future forest plans without following

2 Morever, as petitioners concede (Pet. 13-14), they are not

seeking monetary compensation for any injury allegedly caused

by adoption of the temporary policy. Thus, this case would be

moot even if petitioners had not agreed to modify their con-

tracts with the Forest Service in exchange for adequate con-

sideration, because there is no meaningful non-monetary relief

that can now be granted to petitioners. Cf. City of Los Angeles

v. Lyons, 461 U.S. 95, 101-110 (1983) (finding no case or contro-

versy with respect to claim for injunctive relief even though

plaintiff's claim for money damages was not moot).

15

Forest Act procedures,” and that “[e]ven with the

adoption of a new woodpecker plan, [petitioners] have

still been denied the procedure to which they assert

they are due.” Pet. App. 58a. The court concluded

that the Forest Service “cannot evade review by

continuously adopting short term woodpecker plans.”

Ibid.

Petitioners’ claims do not fall within the exception

for cases that are capable of repetition, but evading

review. That exception applies only where “there [is]

a reasonable expectation that the same complaining

party would be subjected to the same action again.”

Weinstein v. Bradford, 423 U.S. at 149. Petitioners

have no reasonable expectation that they will again be

subjected to the same allegedly illegal agency conduct

that led to promulgation of the temporary policy.

Petitioners’ allegations in this case concern claims

of procedural and substantive errors under NEPA,

the ESA, and NFMA with regard to the adoption of

the temporary policy, not the subsequent Interim

Standards and Guidelines. The standards and guide-

lines were issued after preparation of a different

environmental assessment and decision notice under

NEPA and NFMA and a different ESA biological

evaluation with concurrence from the FWS. Pet. C.A.

Br. addendum, Tab 7, at 2, 4. While petitioners may

claim errors in the adoption of the standards and

guidelines, resolution of those entirely distinct

claims would depend on review of the administrative

record underlying adoption of the standards and

guidelines, not the record developed for the temporary

policy announced in March 1989.

In effect, the district court was able to conclude

that this case is “capable of repetition” only by

16

equating two entirely different agency actions—

adoption of the temporary policy and adoption of the

Interim Standards and Guidelines—and by improperly

presuming that the Forest Service would repeat the

alleged errors that led to issuance of the temporary

policy. There is no basis for concluding, however,

that the issues in any future challenge by petitioners

to the Forest Service’s RCW policies would be the

same as those raised in this case. Moreover, the

Forest Service, like other agencies, “is entitled to a

presumption of regularity,” Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971),

and thus it was improper for the district court to

assume that petitioners’ claims of illegal agency

practice would arise in the future. See City of Los

Angeles v. Lyons, 461 U.S. 95, 109 (1983) (“the cap-

able-of-repetition doctrine applies only in exceptional

situations, and generally only where the named

plaintiff can make a reasonable showing that he wiil

again be subjected to the alleged illegality”). Ac-

cordingly, the district court erred in concluding that

petitioners’ challenge to the policy was not moot.

2. Petitioners contend (Pet. 11-18) that the court

of appeals erred in concluding that petitioners’ allega-

tions of injuries to their economic interests under

their timber contracts did not provide standing to sue

in federal district court. According to petitioners

(Pet. 12), the court of appeais improperly “collapsed

two separate questions—the question of standing, and

that of the exclusive jurisdiction of the Court of

Federal Claims—into one,” in conflict with “the

approach employed by other circuits.” That con-

tention does not merit further review.

a

i

None of the cases cited by petitioners as evidence of

a circuit conflict (see Pet. 12 n.9, 15-17) holds that

plaintiffs in the position of petitioners possess stand-

ing to sue in federal district court. Indeed, most of

those cases do not discuss standing at all, but focus

instead on the analytically distinct question of sub-

ject matter jurisdiction under 28 U.S.C. 1346(a)(2).

The only case cited by petitioners that does discuss

an analogous issue of standing, National Helium

Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971), pro-

vides no support for petitioners’ claim of a circuit

conflict.’

National Helium involved a NEPA suit brought by

federal contractors against the government. The

court expressly declined to hold that the plaintiffs’

claims of economic injury arising out of their federal

contract were sufficient to establish standing to sue

in federal district court. Indeed, the court noted that

“federal question jurisdiction would be -perhaps

somewhat tenuous” if the plaintiffs in that case had

relied solely on their own economic interests as a

basis for standing. 455 F.2d at 654; see also id. at 655

(implying that jurisdiction would have been absent if

the plaintiffs had been “motivated solely by protection

of their own pecuniary interest”). The court con-

cluded, however, that the plaintiffs’ “asserted repre-

* In Wabash Valley Power Ass’n v. Rural Electrification

Admin., 903 F.2d 445 (7th Cir. 1990), the court discussed

principles of standing in holding that a power company could

contest a proposed rate increase because, inter alia, the rate

increase would likely lead to imposition of penalties on the

company by state regulators. 903 F.2d at 451-452. That ruling

is entirely unrelated to the standing issue decided by the court

of appeals in this case, and thus the decision in Wabash Valley

is not inconsistent with the decision below.

18

sentation of the public interest” in enforcement of

NEPA provided a basis for judicial review. Id. at 654.

Thus, National Helium did not decide the question

that petitioners seek to raise in this Court, and it

therefore does not support petitioners’ claim of a

circuit conflict on that question.‘

The decisions cited by petitioners are inapposite for

another reason as well. In each of those cases, the

question of jurisdiction turned on whether the

plaintiffs’ claims were “founded upon any express or

implied contract with the United States” within the

meaning of 28 U.S.C. 1346(a)(2). In this case, by

contrast, it is indisputable that “all disputes arising

under or relating to” petitioners’ contracts with the

Forest Service are governed by the Contract Dis-

putes Act, 41 U.S.C. 601 et seg. See Timber Sale

Contract provision CT9.2(b) (emphasis added); see

also 41 U.S.C. 605(a) (Contract Disputes Act applies

to “[ajll claims by a contractor against the govern-

ment relating to a contract”) (emphasis added). The

Contract Disputes Act establishes a detailed scheme

for administrative review of disputes involving the

government’s contractual relationships with private

parties, and it vests jurisdiction to review such

administrative determinations in the Court of Fed-

eral Claims. 41 U.S.C. 609(a)(1) (Supp. IV 1992).

* To be sure, National Helium’s holding that the general-

ized “public interest” in enforcement of environmental laws

suffices to establish standing to sue, if extended to this case,

would lead to the conclusion that petitioners—or, for that

matter, anyone else—have standing to assert their claims. That

holding, however, is plainly not good law in light of subsequent

decisions of this Court (see, e.g., Sierra Club v. Morton, 405

U.S. 727, 734-740 (1972)); petitioners make no claim to the

contrary.

ee

19

Thus, regardless of whether petitioners’ claims would

have been properly characterized as “founded upon”

their federal contracts within the meaning of 28

U.S.C. 1346(a)(2), the district court lacked juris-

diction to the extent those claims “relat[e] to” those

contracts. Petitioners’ claims of economic injury to

existing contractual rights plainly “relat[e] to” their

contracts, and thus those claims should have been

brought in the Court of Federal Claims.

Moreover, as petitioners concede, “a claim of breach

of *** contract (if there existed a viable claim of

breach) would fall within the exclusive jurisdiction of

the Court of Federal Claims.” Pet. 12. Properly

viewed, that is precisely the nature of petitioners’

claims with respect to their preexisting timber con-

tracts. Petitioners’ contracts contain an endangered

species provision specifying that “{ilf protection

measures prove inadequate, * * * [the] Forest Service

may *** modify this contract to provide additional

protection” for an endangered species. Timber Sale

Contract provision CT6.25#, reproduced in Defen-

dants’ Motion to Dismiss, Exhs. 3-5 (filed Feb. 12,

1990). It is undisputed that the Forest Service issued

the temporary policy in March 1989 “to provide

additional protection” for the RCW as a result of the

Forest Service’s determination that “protection

measures proveld] inadequate.” Thus,. petitioners’

complaint that adoption of the policy violated certain

statutory requirements to the detriment of

petitioners’ contractual interests amounted to

nothing more than a claim that the Forest Service

breached its contracts with petitioners by relying on

an illegally adopted policy as a basis for contract

modification.

20

The fact that petitioners purported to proceed un-

der the Administrative Procedure Act (APA) rather

than a contractual theory is irrelevant. The APA

authorizes judicial review of final agency action “for

which there is no other adequate remedy in a court.”

5 U.S.C. 704. There is no question that petitioners

have an adequate alternative remedy for the assertion

of their claims of economic injury to their contract

rights—namely, the comprehensive remedy provided

by the scheme of administrative and judicial review

established pursuant to the Contract Disputes Act.®

Petitioners have failed to demonstrate that that

remedy is inadequate, and in any event that narrow

question is not itself worthy of review.

3. Petitioners also assert (Pet. 18-22) that the

court of appeals erred in rejecting their claims of

future economic injury arising out of the temporary

policy’s alleged effect on future timber contracts.

According to petitioners, the court of appeals’ ruling

on that issue conflicts with decisions by this Court

and the courts of appeals. That contention is without

merit.

To establish Article III standing, a plaintiff must

allege personal injury-in-fact. The requisite injury

cannot be “[a]bstract,” “hypothetical,” or “conject-

ural,” O’Shea vy. Littleton, 414 U.S. 488, 494 (1974);

5 Moreover, because the Contract Disputes Act specifies the

Court of Federal Claims as the appropriate court in which to

seek judicial review of administrative decisions under the Act,

venue was not properly laid in federal district court, and the

appropriate form of action was a damages action, not a suit for

equitable relief. 5 U.S.C. 703 (“The form of proceeding for

judicial review is the special statutory review proceeding

relevant to the subject matter in a court specified by statute.”).

— 9 Ee baer

EE TS'’~ ~~~” tt,

21

City of Los Angeles v. Lyons, 461 U.S. at 101-102; it

must be “distinct and palpable,” Warth v. Seldin, 422

U.S. 490, 501 (1975), or “certainly impending,” Babbitt

v. United Farm Workers National Union, 442 U.S.

289, 298 (1979). Furthermore, “the litigant must

satisfy the ‘causation’ and ‘redressability’ prongs of

the Art. III minima by showing that the injury ‘fairly

can be traced to the challenged action’ and ‘is likely to

be redressed by a favorable decision.’” Whitmore v.

Arkansas, 495 U.S. 149, 155 (1990); see Allen v.

Wright, 468 U.S. 737, 751 (1984).

Petitioners’ claims of future economic injury

rested on the proposition that the challenged Forest

Service policy would reduce the quantity of timber

available under future timber contracts and thereby

cause economic harm to petitioners. Pet. App. 14a-

15a. Applying settled principles of law, the court of

appeals concluded that those claims were insufficient

to confer standing because petitioners had not shown

that their alleged injuries were likely to be redressed

by a favorable decision. Jd. at 15a-16a. The court

found that it was “purely speculative” whether the

relief requested by petitioners “would result in

greater timber availability in the future.” Jd. at 15a.

Petitioners disagree with the correctness of that

determination, but the court’s application of settled

law to the particular circumstances of this case is not

worthy of review.

In any event, the court of appeals correctly held

that petitioners’ claims of injury relating to future

contracts were insufficient to confer standing.

Assuming, as petitioners contend (Pet. 8, 18), that the

temporary policy adopted in March 1989 reduced the

quantity of timber available for harvest in fiscal years

22

1989 and 1990, a favorable decision now would not

redress that result. Any future timber sales would

still be subject to the requirements of the ESA and

NFMA, and thus would have to comply with the

Forest Service’s Interim Standards and Guidelines

for the management of RCW habitat. In short, there

is no basis for concluding that an award of the relief

petitioners seek with respect to the temporary policy

would have any impact on the future availability of

timber in Region 8, and petitioners have therefore not

“shown an injury to [themselves] that is likely to be

redressed by a favorable decision.” Simon v. Eastern

Kentucky Welfare Rights Organization, 426 U.S. 26,

38 (1976).

Moreover, the record in this case contains no

evidence that the alleged reduction in available timber

affected any bid that petitioners did or would have

prepared for timber sales contracts during the

affected years. Thus, petitioners have failed to “show

the existence of any injury *** of sufficient

immediacy and ripeness to warrant judicial interven-

tion.” Warth v. Seldin, 422 U.S. at 516. “Allegations

of possible future injury do not satisfy the require-

ments of Art. II1.” Whitmore v. Arkansas, 495 U.S.

at 158. Rather, such injury must be “certainly im-

pending.” Jbid. There is no standing with regard to

the possible impacts of the policy on future timber

sales to petitioners unless and until the policy “has

an actual or immediately threatened effect” on

petitioners. Lujan v. National Wildlife Federation,

497 U.S. 871, 894 (1990); see id. at 891.

The Ninth Circuit’s decision in Jdaho Conserva-

tion League v. Mumma, 956 F.2d 1508 (1992), is not to

the contrary. In Mumma, the court held that the

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23

plaintiff environmental groups had met the prerequi-

site for standing by showing personal injury-in-fact

as a result of a Forest Service decision not to

recommend wilderness designation of a number of

roadless areas. Id. at 1514-1517. Petitioners failed to

allege comparable personal injury resulting from

issuance of the temporary policy at issue here,

because they did not identify in concrete terms any

injury they actually suffered or were about to suffer

with respect to possible future contracts.®

Finally, petitioners’ reliance (Pet. 21-22) on this

Court’s decision in Northeastern Florida Chapter of

Associated General Contractors v. City of Jack-

sonville, 113 S. Ct. 2297 (1993), is unavailing. That

case involved a claim by members of a particular

group that they had been denied an opportunity to

compete for a government benefit on an equal footing

with members of other groups. The Court held that,

in such cases, the plaintiffs need not allege that they

would have been granted the benefit but for the

unequal treatment, because the injury of which the

plaintiffs complain is not “the ultimate inability to

obtain the benefit,” but rather “the denial of equal

treatment.” 113 S. Ct. at 2303.

In announcing that rule, however, the Court explic-

itly distinguished the situation of plaintiffs who make

no claim of unequal treatment but instead assert that

the denial of a particular government benefit is itself

the injury that grants them standing. 113 S. Ct. at

® Similarly unavailing is petitioners’ reliance (Pet. 21 n.19)

on cases permitting review of claims by disappointed bidders on

federal contracts. Petitioners are not disappointed bidders; by

definition, “future contracts” are contracts that have not been

awarded.

24

2303-2304 (citing Warth v. Seldin, 422 U.S. 490

(1975)). Petitioners fall into the latter category. The

injury of which they complain is not the denial of an

opportunity to compete for timber contracts on an

equal basis with other timber companies; rather, they

claim that they were prospectively injured because

the temporary policy reduced the availability of

timber for all timber companies. Accordingly, the

rule announced in Northeastern Florida Contractors

is inapplicable on its own terms.’

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

<<

DREW S. DAYS, III

Solicitor General

Lois J. SCHIFFER

Acting Assistant Attorney General

JACQUES B. GELIN

WILLIAM B. LAZARUS

Attorneys

DECEMBER 1993

7 Petitioners’ reliance (Pet. 21) on Ballerina Pen Co. v.

Kunzig, 433 F.2d 1204 (D.C. Cir. 1970), cert. dismissed, 401

U.S. 950 (1971), is misplaced for the same reason. In that case,

the court of appeals held that entities that supplied ballpoint |

pens to the federal government had standing to challenge the

government’s decision to give a ballpoint pen contract bid

preference to non-profit agencies for the blind, a category that

did not include the plaintiffs. Jd. at 1205-1206. Thus, the

injury that gave rise to standing was the denial of equal

treatment; petitioners make no such claim here.

——————