Bensman v. U.S. Forest Service, No. 03-4041.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtRipple
Citation408 F.3d 945
Docket NumberNo. 03-4041.
Decision Date02 June 2005
PartiesJim BENSMAN, Mark Donham and Heartwood, Incorporated, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE and Randy Moore, Defendants-Appellees.

Page 945

408 F.3d 945
Jim BENSMAN, Mark Donham and Heartwood, Incorporated, Plaintiffs-Appellants,
v.
UNITED STATES FOREST SERVICE and Randy Moore, Defendants-Appellees.
No. 03-4041.
United States Court of Appeals, Seventh Circuit.
Argued September 13, 2004.
Decided June 2, 2005.

Page 946

Leigh Haynie (argued), Carencro, LA, for Plaintiffs-Appellants.

Jonathan H. Koenig (argued), Office of the United States Attorney, Milwaukee, WI, for Defendants-Appellees.

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Before BAUER, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.


Through its employees, Mark Donham and Jim Bensman, Heartwood, Inc., an Indiana nonprofit concerned with preserving the national forests, commented on several projects of the United States Forest Service ("Forest Service" or "the Service"). When notified of the decision of the Service with respect to these projects, it sought, through the same employees, to file an appeal in each of those matters. In filing its appeals, Heartwood relied upon the Service's statement as to the due date for the filings. That statement was wrong; the appeals were a day late, and the Service therefore refused to consider them.

Invoking the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-706, Heartwood then filed this action in the district court. It sought declaratory and injunctive relief to require that the Service consider its appeals. The district court dismissed the action; it held that Mr. Donham lacked standing to assert one claim and that neither he nor Mr. Bensman could assert equitable tolling or equitable estoppel with respect to the other. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I
BACKGROUND

A. Facts

We shall limit this rendition to those facts pertinent to the issues before us. The Forest Service invited public comment with respect to certain project decisions for the Mark Twain National Forest in Missouri (the "Chadwick Trails project") and the Hiawatha and Ottawa National Forests in Michigan (the "Pole Lake project" and "Plantation Lakes project," respectively). Heartwood, through its employees, Mr. Bensman and Mr. Donham, submitted comments to the Service about the advisability of certain proposed actions with respect to each of these projects.

When the Forest Service made its initial decision with respect to each project, it complied with statutory and regulatory requirements by mailing to interested parties information about how to appeal the Service's determinations. Because Mr. Donham and Mr. Bensman had participated in the initial comment period, they received this notification. Relying on 36 C.F.R. § 215, the cover letters sent by the Service noted that appeals had to be lodged within 45 days of the decisions' publications and also noted the precise date when appeals were due. In each case, the date was incorrect; the 45-day window for appeals under 36 C.F.R. §§ 215.9 and 215.13 (2001)1 actually closed the day before the given date.

Mr. Donham and Mr. Bensman filed appeals of decisions within their areas of responsibility (the Pole Lake/Plantation Lakes projects, and Chadwick Trails project, respectively) on the dates specified by the Service's notification. The Service nevertheless dismissed their appeals because their submissions were late.

B. District Court Proceedings

After the Service refused to consider the appeals, Heartwood, along with Mr. Donham

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and Mr. Bensman, filed this action. Invoking the APA, they sought declaratory and injunctive relief to require that the Service consider their appeals.

The plaintiffs took the position that, because they had relied on the Service-provided due dates, the 45-day appeal period was equitably tolled, and the Forest Service was estopped from dismissing their appeals. They requested that the district court require the Service to stay the three projects until it considered their appeals. In reply, the Service asserted that the district court lacked subject matter jurisdiction over the action because the plaintiffs did not have standing to seek such redress in a federal court. The Service further submitted that the plaintiffs were not entitled to equitable tolling or equitable estoppel.

The district court first turned to Mr. Bensman's appeal concerning the Chadwick Trails project. The district court held that Mr. Bensman had standing because he had asserted a concrete injury in not having received the information that he had sought. Turning to Mr. Donham's appeal, the district court held that Mr. Donham could not assert such an informational injury because he did not identify any concrete and particularized injury.

Because the district court had determined that Mr. Bensman had standing to pursue the action with respect to his administrative appeal, the district court next considered whether equitable tolling and equitable estoppel rendered timely his administrative appeals. With respect to the equitable tolling claim, the district court concluded that, with due diligence, Mr. Bensman could have filed the appeals on time; therefore, he could not rely on equitable tolling. With respect to equitable estoppel, the court found no evidence of deliberate misconduct on the part of the Forest Service and held that equitable estoppel was inapplicable. The district court therefore dismissed the action. This appeal followed.

II
DISCUSSION

A. Standing

Before we may address the merits, we must consider the "threshold jurisdictional question" of whether Mr. Bensman and Mr. Donham, and Heartwood,2 have standing to maintain this action. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,

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102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "Standing to sue is part of the common understanding of what it takes to make a justiciable case," id. (citing Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)), and "[f]or a court to pronounce upon the meaning ... of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires," id. at 101-02, 118 S.Ct. 1003. The parties invoking federal jurisdiction, here Mr. Bensman, Mr. Donham and Heartwood, bear the burden of establishing the requisite standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

"The irreducible constitutional minimum of standing contains three requirements." Steel Co., 523 U.S. at 102, 118 S.Ct. 1003 (internal quotation omitted). To maintain an action in a federal court, Mr. Bensman, Mr. Donham and Heartwood must demonstrate (1) an injury in fact, which is (a) concrete and particularized and (b) actual or imminent; (2) that is traceable to the Forest Service's refusal to hear their appeal; and (3) that is likely to be redressed by a favorable decision from this court. Id. at 103, 118 S.Ct. 1003; Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. Before we apply the analytical formula to the case at hand, it is essential that we pause a moment and focus on the precise nature of the claim asserted by these plaintiffs. The plaintiffs' claim alleges a violation of the APA. The plaintiffs believe that the Forest Service arbitrarily and capriciously dismissed their appeals and therefore deprived them of their rights under the Appeals Reform Act ("ARA"), 16 U.S.C. § 1612 note,3 to file an appeal from the Service's initial determination and to have that appeal considered according to the

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terms of that statute. In essence, Mr. Bensman and Mr. Donham challenge the Forest Service's refusal to consider their appeals; in their view, this refusal denied them rights that they believe Congress afforded them under the ARA as notice and comment participants. The injury that they assert is the Service's refusal to hear those appeals, an injury, they further submit, that the district court can remedy through the requested relief.4

The only standing question presented in this appeal is whether the plaintiffs have suffered an injury in fact sufficient to establish constitutional standing that will allow them to maintain this action in federal court. They assert that the Forest Service injured them by denying them procedural rights granted by the ARA. In their view, they have a right under the ARA to participate in the administrative appeals process and to receive information regarding the disposition of their appeals. The denial of this opportunity constitutes, they submit, a sufficiently concrete injury for standing purposes. Mr. Bensman and Mr. Donham further contend that they have

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concrete interests in land affected by the Service projects. In their view, the Forest Service's dismissal of their appeals injured those interests in a manner sufficient to give them standing to challenge the Service's decision. We shall consider each theory of injury in turn.

1.

The plaintiffs assert what might be called generically a "procedural injury."5 This claimed right is grounded solely in the ARA requirement that the Service afford appeal rights to individuals who have participated in the comment period for the project. They simply ask that the Service comply with the ARA.6 The right that they assert is the very definition of a procedural right: "the right to have the Executive observe procedures mandated by law." Hodges v. Abraham, 300 F.3d 432, 444 (4th Cir.2002).

The plaintiffs are certainly within the class of persons who "may file an appeal" under the ARA because they participated in the notice and comment process. 16 U.S.C. § 1612 note (c). It equally is certain that, in dismissing their appeals, the Forest Service deprived them of this procedural right to be heard during the appellate phase of the Service's consideration of its decision in each project. The Service submits, nevertheless, that the alleged injury is insufficient to satisfy the constitutional prerequisite for standing. It points out that, in Lujan, the Supreme Court determined that plaintiffs could not fulfill the...

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53 practice notes
  • Preservation of Los Olivos v. Dept. of Interior, Case No. CV 06-1502 AHM (CTx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 8, 2008
    ...at stake in this action is the IBIA's very refusal to hear the merits of Plaintiffs' appeal. See Bensman v. United States Forest Service, 408 F.3d 945, 950 (7th Cir. 2005) ("[t]he injury that they assert is the [agency's] refusal to hear those appeals."). That is not the same as whether on ......
  • Nat'l Educ. Ass'n v. DeVos, Case No. 18-cv-05173-LB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 17, 2018
    ...courts indicating that regulations or agency policies may be sufficient to create a right to information." Bensman v. U.S. Forest Serv. , 408 F.3d 945, 958–59 (7th Cir. 2005) (citing D.C. Circuit cases).The Department cites no cases that hold that a right to information secured by regulatio......
  • Sierra Club v. Franklin County Power of Illinois, No. 06-4045.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 27, 2008
    ...of air quality does not exceed [certain national limits]." LaFleur, 300 F.3d at 270-71; see also Bensman v. United States Forest Serv., 408 F.3d 945, 962-63 (7th Cir.2005) (individual had standing to challenge a proposed project in a national forest when he had visited the project area six ......
  • Food & Water Watch, Inc. v. Vilsack, Civil Action No. 14–cv–1547KBJ
    • United States
    • U.S. District Court — District of Columbia
    • February 9, 2015
    ...and not adulterated, all to the end of protecting the health and welfare of consumers and the market) with Bensman v. Forest Serv., 408 F.3d 945, 958 (7th Cir.2005) (explaining that public disclosure statutes, such as the Freedom of Information Act and the Federal Advisory Committee Act, sh......
  • Request a trial to view additional results
53 cases
  • Preservation of Los Olivos v. Dept. of Interior, Case No. CV 06-1502 AHM (CTx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 8, 2008
    ...at stake in this action is the IBIA's very refusal to hear the merits of Plaintiffs' appeal. See Bensman v. United States Forest Service, 408 F.3d 945, 950 (7th Cir. 2005) ("[t]he injury that they assert is the [agency's] refusal to hear those appeals."). That is not the same as whether on ......
  • Nat'l Educ. Ass'n v. DeVos, Case No. 18-cv-05173-LB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 17, 2018
    ...courts indicating that regulations or agency policies may be sufficient to create a right to information." Bensman v. U.S. Forest Serv. , 408 F.3d 945, 958–59 (7th Cir. 2005) (citing D.C. Circuit cases).The Department cites no cases that hold that a right to information secured by regulatio......
  • Sierra Club v. Franklin County Power of Illinois, No. 06-4045.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 27, 2008
    ...of air quality does not exceed [certain national limits]." LaFleur, 300 F.3d at 270-71; see also Bensman v. United States Forest Serv., 408 F.3d 945, 962-63 (7th Cir.2005) (individual had standing to challenge a proposed project in a national forest when he had visited the project area six ......
  • Food & Water Watch, Inc. v. Vilsack, Civil Action No. 14–cv–1547KBJ
    • United States
    • U.S. District Court — District of Columbia
    • February 9, 2015
    ...and not adulterated, all to the end of protecting the health and welfare of consumers and the market) with Bensman v. Forest Serv., 408 F.3d 945, 958 (7th Cir.2005) (explaining that public disclosure statutes, such as the Freedom of Information Act and the Federal Advisory Committee Act, sh......
  • Request a trial to view additional results
1 books & journal articles
  • Developments in Standing for Public Lands and Natural Resources Litigation
    • United States
    • Environmental Law Reporter Nbr. 48-12, December 2018
    • December 1, 2018
    ...a speciic area or project site was also emphasized by the U.S. Court of Appeals for the Seventh Circuit in Bensman v. U.S. Forest Serv. , 408 F.3d 945, 35 ELR 20111 (7th Cir. 2005). Past visits by one employee to two national forests were not suicient given, among other things, vagueness of......

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