376 F.Supp.2d 994 (E.D.Cal. 2005), Civ.F-03-6386, Earth Island Institute v. Pengilly

Docket Nº:Civ.F-03-6386
Citation:376 F.Supp.2d 994
Party Name:Earth Island Institute v. Pengilly
Case Date:July 02, 2005
Court:United States District Courts, 9th Circuit, Eastern District of California

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376 F.Supp.2d 994 (E.D.Cal. 2005)

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 Bosworth, in his official capacity as Chief of the U.S. Forest Service, Defendants.

No. CIV F-03-6386 JKS.

United States District Court, E.D. California.

July 2, 2005

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Rachel Marie Fazio, Rachel M. Fazio Attorney at Law John Muir Project, Cedar Ridge, CA, Matt Kenna, Matt Kenna Kenna & Hickcox, Durango, CO, Danielle Fugere, Public Interest Lawyers Group, San Francisco, CA, Aaron Stephen Isherwood, Sierra Club, San Francisco, CA, for Plaintiffs.

Barclay Thomas Samford, U.S. Department of Justice, Enviromental and Natural Resources Division, Denver, CO, Edmund F. Brennan, U.S. Attorney's Office, Sacramento, CA, Thomas L. Sansonetti, Wells D. Burgess, John P. Almeida, U.S. Department of Justice, Environmental and Natural Resources, Washington, DC, for Defendants.


SINGLETON, Senior District Judge.

Plaintiffs Earth Island Institute, et al., 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. III § 332(a), 106 Stat. 1419 (1992), codified at 16 U.S.C. § 1612 note. 1 Plaintiffs

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argue that the regulations violate the ARA by improperly exempting certain Forest Service decisions from appeal, by exempting certain Forest Service decisions that are subject to appeal from the automatic stay provision of the ARA, and by limiting the public comment 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 regulations implementing the ARA. See Docket No. 75 (Pretrial order). The Court granted a preliminary injunction preventing the project and several months later approved a settlement regarding the project. Id. Thus, the Burnt Ridge timber sale is not at issue in this case. Only the challenges to the administrative appeal rules remain.


In 1992 the Forest Service sought to overhaul its review and appeal procedures. The Forest Service proposed 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 procedure for appeals of decisions concerning such projects.

Id. § (a). The ARA goes on to provide specific requirements for the notice, comment, and appeal process to be developed by the Forest Service. Id. § (b)-(e). Plaintiffs challenge the Forest Service's implementation of these specific requirements. However, before confronting the Forest Service regulations, several procedural matters must be addressed. Specifically, the Forest 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 III standing requirements a plaintiff must show that:

(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.

Friends of the Earth, Inc. v. Laidlaw 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)). Pursuant 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

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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 statute that it cannot reasonably be assumed that Congress intended to permit the suit." Id. (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. 2434, 53 L.Ed.2d 383 (1977)).

In environmental cases, the relevant inquiry is whether a plaintiff has suffered injury, not whether the environment has been injured in fact. Id. 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 occurred or probably will occur by virtue of the governmental action." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S.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 has held insufficient to establish injury in fact. Laidlaw Envtl. Servs., 528 U.S. at 184, 120 S.Ct. 693 (quoting Defenders of Wildlife, 504 U.S. at 564, 112 S.Ct. 2130). Where a plaintiff or group of plaintiffs submits affidavits concerning direct effects to the affiant's "recreational, aesthetic, and economic interests," standing is appropriate. Id.

The Forest Service asserts that Plaintiffs lack standing 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 Envtl. Servs, 528 U.S. at 180, 120 S.Ct. 693.

In his declaration, Bensman states that he is a regular visitor to many of the country's national forests, including several located in California. Docket No. 70, Ex. A at pp 4-9. In addition to using and enjoying national forests, Bensman has "commented on [approximately] a thousand Forest Service projects." Id. at ¶ 13. Over the years he has also appealed decisions of the Forest Service and has, at times, been successful. Id. 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. Id. at ¶ 14. Further, in August 2003 Bensman and Heartwood submitted comments on a Forest Service proposal. Not knowing whether his comments constituted "substantive comments" under the new regulations, Bensman submitted an addendum to his earlier comments identifying himself as "an interested and affected party for this project." Id. at ¶ 18. Later, Bensman and Heartwood filed an appeal of the project. The appeal was dismissed because, according to the Regional Forester, Bensman

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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." Id. 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 or 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 enjoyment of national forests. Any harm to Plaintiffs' use and enjoyment comes from harm to the environment that in turn comes from being unable to effectively challenge Forest Service projects in national forests. The Forest Service's...

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