490 F.3d 687 (9th Cir. 2006), 05-16975, Earth Island Institute v. Ruthenbeck

Docket Nº:05-16975, 05-17078.
Citation:490 F.3d 687
Party Name:EARTH ISLAND INSTITUTE; Sequoia Forestkeeper, a California non-profit corporation; Heartwood, an Indiana non-profit corporation; Center for Biological Diversity, a New Mexico non-profit corporation; Sierra Club, Plaintiffs-Appellees, v. Nancy RUTHENBECK; [*] United States Forest Service; Mike Johanns; [**] Dale Bosworth, Defendants-Appellants. Eart
Case Date:August 10, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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490 F.3d 687 (9th Cir. 2006)

EARTH ISLAND INSTITUTE; Sequoia Forestkeeper, a California non-profit corporation; Heartwood, an Indiana non-profit corporation; Center for Biological Diversity, a New Mexico non-profit corporation; Sierra Club, Plaintiffs-Appellees,

v.

Nancy RUTHENBECK; [*] United States Forest Service; Mike Johanns; [**] Dale Bosworth, Defendants-Appellants.

Earth Island Institute; Sequoia Forestkeeper, a California non-profit corporation; Heartwood, an D.C. No. Indiana non-profit corporation; Center For Biological Diversity, a New Mexico non-profit corporation; Sierra Club, Plaintiffs-Appellants,

v.

Nancy Ruthenbeck; United States Forest Service; Ann M. Veneman; Dale Bosworth, Defendants-Appellees.

Nos. 05-16975, 05-17078.

United States Court of Appeals, Ninth Circuit.

Aug. 10, 2006

Argued and Submitted June 12, 2006.

Amended June 8, 2007.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Katherine W. Hazard and Jennifer L. Scheller, U.S. Department of Justice Environment & Natural Resources Division, Washington, DC, for the defendants-appellants.

Matt Kenna, Western Environmental Law Center, Durango, CO, for the plaintiffs-appellees.

Thomas R. Lundquist, Crowell & Moring, LLP, Washington, DC, for Amicus Curiae.

Appeal from the United States District Court for the Eastern District of California; James K. Singleton, Chief Judge, Presiding. D.C. No. CV-03-06386-JKS.

Before: MARY M. SCHROEDER, Chief Judge, SUSAN P. GRABER, Circuit Judge, and KEVIN THOMAS DUFFY, [***] Senior Judge.

ORDER

The panel has voted to deny the petition for rehearing. Chief Judge Schroeder and Judge Graber have voted to deny the petition for rehearing en banc, and Judge Duffy has so recommended.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it.

The petitions for rehearing and rehearing en banc are DENIED.

Plaintiffs-Appellees' motion for clarification with regard to the applicability of the opinion to both 36 C.F.R. §§ 215.12(f) and 215.4(a) and inapplicability of the opinion to 36 C.F.R. § 215.18(b)(1) is GRANTED.

The opinion at Earth Island Institute v. Ruthenbeck, 459 F.3d 954 (9th Cir.2006), is amended and, in the interest of clarity, the attached amended opinion is substituted in its place.

No further petitions for rehearing or rehearing en banc may be filed.

AMENDED OPINION

SCHROEDER, Chief Judge.

I. Overview

This is a government appeal from a district court judgment enjoining Forest Service regulations that govern review of decisions implementing forest plans, on the ground that the regulations were manifestly contrary to the governing statute. The Forest Service promulgated the challenged regulations pursuant to the Forest Service Decisionmaking and Appeals Reform Act ("ARA"), Pub.L. 102-381, tit. 111, § 322, 106 Stat. 1419 (1992) (codified at 16 U.S.C. § 1612 note). In a cross-appeal, the environmentalist plaintiffs Earth Island Institute et al. challenge the four regulations the district court held were valid. The statute pertains to procedures relating to public comment, notice, and administrative appeal of proposed forest management actions. The government raises standing and ripeness issues. We agree with the district court that plaintiffs have established standing. But because only two aspects of the regulations, 36 C.F.R. §§ 215.12(f) and 215.4(a) have actually been applied to a proposed project, we hold that only those regulations are ripe for review. We affirm the district court's judgment that 36 C.F.R. §§ 215.12(f) and 215.4(a) conflict with the Appeals Reform Act and affirm the nationwide injunction barring their application. We remand the judgment and injunction with respect to

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the remaining regulations to the district court with instructions to vacate for lack of a controversy ripe for review.

II. Background

Plaintiffs, Earth Island Institute, Sequoia Forestkeeper, Heartwood, Inc., Center for Biological Diversity, and the Sierra Club (collectively "Earth Island") are non-profit environmental organizations. To establish their standing, plaintiffs rely on the declaration of Jim Bensman, an employee and member of Heartwood. According to his affidavit, Bensman has been using the National Forests for over 25 years, and has visited National Forests in California, including Klamath, Shasta, Six Rivers and Trinity. Bensman declared that he planned to return to California in August 2004 and Oregon in October 2004. He asserted that his interest in the biological health of the forest, as well as his recreational interest, is harmed when development occurs in violation of law or policy. Bensman specifically stated that if an appeal option were available to him on projects that are categorically excluded from appeal, he would exercise that right of appeal. He also alleged personal and procedural injuries under each challenged regulation.

The defendant, the United States Forest Service, prior to 1992, provided a post-decision administrative appeals process, 36 C.F.R. pt. 217, for agency decisions documented in a "decision memo," "decision notice," or "record of decision." See 54 Fed.Reg. 3342 (Jan. 23, 1989); Heartwood, Inc. v. U.S. Forest Serv., 316 F.3d 694, 696 (7th Cir.2003). In March 1992, the Forest Service proposed a new regulation that would have eliminated post-decision administrative appeals for all decisions except those approving forest plans or amendments or revisions to forest plans. See 57 Fed.Reg. 10,444 (Mar. 26, 1992). The 1992 proposal would have replaced post-decision administrative appeals with pre-decision notice and comment procedures for proposed projects on which the Forest Service had completed an Environmental Assessment ("EA") and a finding of no significant impact ("FONSI"), in accordance with applicable provisions of the National Environmental Policy Act of 1969 ("NEPA"). Essentially, the proposal provided a categorical exclusion from notice, comment and appeal for projects the Forest Service deemed environmentally insignificant.

The 1992 proposal was greeted with considerable protest, and environmental groups decried the loss of administrative review. Congress, in response, enacted the ARA. Pub.L. No. 102-381, tit. III § 322, (codified at 16 U.S.C. § 1612 note). Among other things, the ARA required the Forest Service to establish an administrative appeals process with opportunity for notice and comment. The ARA provides in material part:

(a) IN GENERAL.--In accordance with this section, the Secretary of Agriculture, acting through the Chief of the Forest Service, shall establish a notice and comment process for proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. § 1601 et seq.) and shall modify the procedure for appeals of decisions concerning such projects.

ARA § 322(a).

After a series of challenges to regulations promulgated pursuant to the ARA, see Heartwood, Inc., 316 F.3d 694, the Forest Service reinstated the pre-1992 notice, comment and administrative appeal procedure as an interim measure until the Forest Service issued a final regulation

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implementing the ARA. See 68 Fed.Reg. 33,582, 33,586. On June 4, 2003, the Forest Service published a final rule revising the notice, comment, and appeal procedures for "projects and activities implementing land and resource management plans on National Forest System lands." 68 Fed.Reg. at 33,582 (June 4, 2003) ("2003 Rule").

On June 5, 2003, the Forest Service published the final implementing procedures for National Environmental Policy Act Documentation Needed for Fire Management Activities ("Fire CE"), 68 Fed.Reg. 33,814-24 (2003) (codified at Forest Service Handbook 1909.15, ch. 30, § 31.2(10), (11)). This action created a new category of projects, fire rehabilitation activities on less than 4,200 acres, which could be excluded from EA and Environmental Impact Statement ("EIS") analysis, and exempted from notice, comment and appeal under the challenged regulations. Salvage timber sales of 250 acres or less ("Timber Sale CE") were also designated as categorical exclusions on July 29, 2003. 68 Fed.Reg. 44,598-608 (2003) (codified at Forest Service Handbook 1909.15, ch. 30, § 31.2(12), (13), (14)).

On September 8, 2003, the Forest Service issued its Burnt Ridge Project decision memo approving the timber sale and treatment of 238 acres of post-fire forest area. The Burnt Ridge Project timber sale proposal was prepared pursuant to the Sierra Nevada Forest Plan Amendment Record of Decision, stemming from the 2002 McNally fire. The Burnt Ridge Project area is located on the Hot Springs Ranger District of Sequoia National Forest, approximately 8 air miles from California Hot Springs, California. In the summer of 2002, a human-caused fire known as the McNally Fire burned approximately 150,000 acres of forest and chaparral primarily within the Sequoia National Forest. Between January and March 2003...

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