555 U.S. 488 (2009), 07-463, Summers v. Earth Island Institute

Docket Nº:07-463
Citation:555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1, 77 U.S.L.W. 4146, 72 Fed.R.Serv.3d 1183
Party Name:Priscilla SUMMERS, et al., Petitioners, v. EARTH ISLAND INSTITUTE et al
Case Date:March 03, 2009
Court:United States Supreme Court
 
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555 U.S. 488 (2009)

129 S.Ct. 1142, 173 L.Ed.2d 1, 77 U.S.L.W. 4146, 72 Fed.R.Serv.3d 1183

Priscilla SUMMERS, et al., Petitioners,

v.

EARTH ISLAND INSTITUTE et al

No. 07-463

United States Supreme Court

March 3, 2009

Argued October 8, 2008

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[129 S.Ct. 1143] [129 S.Ct. 1144 ] [129 S.Ct. 1145] Syllabus[*]

After the U.S. Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of fire-damaged federal land, respondent environmentalist organizations filed suit to enjoin the Service from applying its regulations exempting such small sales from the notice, comment, and appeal process it uses for more significant land management decisions, and to challenge other regulations that did not apply to Burnt Ridge. The District Court granted a preliminary injunction against [129 S.Ct. 1146] the sale, and the parties then settled their dispute as to Burnt Ridge. Although concluding that the sale was no longer at issue, and despite the Government's argument that respondents therefore lacked standing to challenge the regulations, the court nevertheless proceeded to adjudicate the merits of their challenges, invalidating several regulations, including the notice and comment and the appeal provisions. Among its rulings, the Ninth Circuit affirmed the determination that the latter regulations, which were applicable to Burnt Ridge, were contrary to law, but held that challenges to other regulations not at issue in that project were not ripe for adjudication.

Held:

Respondents lack standing to challenge the regulations still at issue absent a live dispute over a concrete application of those regulations. Pp. 1148-1153.

(a) In limiting the judicial power to "Cases" and "Controversies," Article III restricts it to redressing or preventing actual or imminently threatened injury to persons caused by violation of law. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560, 112 S.Ct. 2130, 119 L.Ed.2d 351. The standing doctrine reflects this fundamental limitation, requiring that "the plaintiff ... 'allegfe] such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction," Warth v. Sel-din, 422 U.S. 490, 498-499, 95 S.Ct. 2197, 45 L.Ed.2d 343. Here, respondents can demonstrate standing only if application of the regulations will affect them in such a manner. Pp. 1148-1149.

(b) As organizations, respondents can assert their members' standing. Harm to their members' recreational, or even their mere esthetic, interests in the National Forests will suffice to establish the requisite concrete and particularized injury, see Sierra Club v. Morton, 405 U.S. 727, 734736, 92 S.Ct. 1361, 31 L.Ed.2d 636, but generalized harm to the forest or the environment will not alone

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suffice. Respondents have identified no application of the invalidated regulations that threatens imminent and concrete harm to their members' interests. Respondents' argument that they have standing based on Burnt Ridge fails because, after voluntarily settling the portion of their lawsuit relevant to Burnt Ridge, respondents and their members are no longer under threat of injury from that project. The remaining affidavit submitted in support of standing fails to establish that any member has concrete plans to visit a site where the challenged regulations are being applied in a manner that will harm that member's concrete interests. Additional affidavits purporting to establish standing were submitted after judgment had already been entered and notice of appeal filed, and are thus untimely. Pp. 1149 -1151.

(c) Respondents' argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. See, e.g., Defenders of Wildlife, supra, at 572, 572, n. 7, 112 S.Ct. 2130. Pp. 1151-1152.

(d) The dissent's objections are addressed and rejected. Pp. 1152 -1153.

490 F.3d 687, reversed in part and affirmed in part.

[129 S.Ct. 1147] Edwin S. Kneedler, Washington, D.C., for petitioners.

Matt Kenna, Durango, CO, for respondents.

Gregory G. Garre, Acting Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for petitioners.

Scott L. Nelson, Public Citizen Litigation Group, Washington, DC, Matt Kenna, Counsel of Record, Durango, CO, for Respondents.

Marc L. Kesselman, General Counsel, Thomas Millet, Associate General Counsel, Department of Agriculture, Washington, D.C., Paul D. Clement, Solicitor General, Counsel of Record, Ronald J. Tenpas, 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., for petitioners.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.

OPINION

Scalia, Justice

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Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as "Earth Island.") They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations.

I

In 1992, Congress enacted the Forest Service Decision making and Appeals Reform Act (Appeals Reform Act or Act), Pub. L. 102-381, Tit. III, §322, 106 Stat. 1419, note following 16 U.S.C. §1612. Among other things, this required the Forest Service to establish a notice, comment, and appeal 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." Ibid.

The Forest Service's regulations implementing the Act provided that certain of its procedures would not be applied to projects that the Service considered categorically excluded from the requirement to file an environmental impact statement (EIS) or environmental assessment (EA). 36 CFR §§215.4(a) (notice and comment), 215.12(f) (appeal) (2008). Later amendments to the Forest Service's manual of implementing procedures, adopted by rule after notice and

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comment, provided that fire-rehabilitation activities on areas of less than 4,200 acres, and salvage-timber sales of 250 acres or less, did not cause a significant environmental impact and thus would be categorically exempt from the requirement to file an EIS or EA. 68 Fed. Reg. 33824 (2003) (Forest Service Handbook (FSH) 1909.15, ch. 30, §31.2(11)); 68 Fed. Reg. 44607 (FSH 1909.15, ch. 30, §31.2(13)). This had the effect of excluding these projects from the notice, comment, and appeal process.

In the summer of 2002, fire burned a significant area of the Sequoia National Forest. In September 2003, the Service issued a decision memo approving the Burnt Ridge Project, a salvage sale of timber on 238 acres damaged by that fire. Pursuant to its categorical exclusion of [129 S.Ct. 1148] salvage sales of less than 250 acres, the Forest Service did not provide notice in a form consistent with the Appeals Reform Act, did not provide a period of public comment, and did not make an appeal process available.

In December 2003, respondents filed a complaint in the Eastern District of California, challenging the failure of the Forest Service to apply to the Burnt Ridge Project §215.4(a) of its regulations implementing the Appeals Reform Act (requiring prior notice and comment), and §215.12(f) of the regulations (setting forth an appeal procedure). The complaint also challenged six other Forest Service regulations implementing the Act that were not applied to the Burnt Ridge Project. They are irrelevant to this appeal.

The District Court granted a preliminary injunction against the Burnt Ridge salvage-timber sale. Soon thereafter, the parties settled their dispute over the Burnt Ridge Project and the District Court concluded that "the Burnt Ridge timber sale is not at issue in this case." Earth Island Inst. v. Pengilly, 376 F.Supp.2d 994, 999 (ED Cal. 2005). The Government argued that, with the Burnt Ridge dispute settled, and with no other project before the court in which respondents were threatened with injury in fact, respondents

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lacked standing to challenge the regulations; and that absent a concrete dispute over a particular project a challenge to the regulations would not be ripe. The District Court proceeded, however, to adjudicate the merits of Earth Island's challenges. It invalidated five of the regulations (including §§215.4(a) and 215.12(f)), id., at 1011, and entered a nationwide injunction against their application, Earth Island Inst. v. Ruthenbeck, No. CIV F–03–6386 JKS, 2005 WL 5280466 *2 (Sept. 20, 2005).

The Ninth Circuit held that Earth Island's challenges to regulations not at issue in the Burnt Ridge Project were not ripe for adjudication because there was "not a sufficient 'case or controversy'" before the court to sustain a facial challenge. Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 696 (2007)...

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