Pac. Rivers Council v. Mark Rey, 06-35565.
| Decision Date | 22 September 2010 |
| Docket Number | No. 06-35565.,06-35565. |
| Citation | 622 F.3d 1251 |
| Parties | The WILDERNESS SOCIETY, INC.; American Wildlands; Pacific Rivers Council, Plaintiffs-Appellees, v. Mark REY; Ann Veneman; Dale Bosworth, Chief, United States Forest Service, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
John C. Cruden, Acting Assistant Attorney General, Washington, D.C., for the appellants.
Leslie Lagomarcino, U.S. Department of Agriculture Office of General Counsel, Washington, DC, for the appellants.
David C. Shilton, Barclay T. Samford (argued), and Katherine W. Hazard, U.S. Dept. of Justice, Washington, D.C., for the appellants.
Timothy J. Preso (argued), Bozeman, MT, for the appellees.
Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. CV-03-00119-DWM.
Before: CYNTHIA HOLCOMB HALL, DAVID R. THOMPSON, and M. MARGARET McKEOWN, Circuit Judges.
The Forest Service Decisionmaking and Appeals Reform Act (“ARA”), requires the Secretary of Agriculture to establish notice and comment procedures through the Chief of the United States Forest Service for proposed decisions related to “projects and activities implementing land and resource management plans.” Pub.L. No. 102-381, § 322, 106 Stat. 1419 (1992) (codified as 16 U.S.C. § 1612 note). The Act also requires the Secretary to modify the appeals procedure for decisions concerning these projects. Id. In 2003, the Forest Service revised the regulations implementing the ARA to significantly limit the scope and availability of notice, comment, and appeals procedures. In response, several environmental groups, The Wilderness Society, American Wildlands, and Pacific Rivers Council (together “TWS”), asserted facial challenges against three sections of the revised regulations, alleging that they are inconsistent with the ARA. The district court agreed and granted TWS declaratory and injunctive relief. Given intervening case law, we dismiss TWS's claims as non-justiciable.
The National Forest Management Act of 1976 directs the Forest Service to develop “land and resource management plans for units of the National Forest System.” 16 U.S.C. § 1604(a). Before 1992, although it was not statutorily required, the Forest Service provided a post-decisional appeals process for certain decisions related to these plans. Ultimately, the Forest Service discontinued the process because it was too costly to maintain. In 1992, partly as a result of negative public reaction to the cancellation, Congress enacted the ARA. The Forest Service then adopted regulations implementing the legislation.
In 2003, the Forest Service issued revised regulations. One month later, TWS challenged three sections of the revised regulations claiming that the provisions impermissibly limit the scope of notice, comment, and appeals. Because the ARA mandates the unqualified application of notice, comment, and appeals procedures to “projects and activities implementing land and resource management plans,” ARA § 322(a), TWS contends that the regulations are at odds with the statute.
Section 215.20(b) of the regulations exempts decisions of the Secretary and Under Secretary (together “the Secretary”) from notice, comment, and appeals requirements:
Decisions of the Secretary of Agriculture or Under Secretary, Natural Resources and Environment are not subject to the notice, comment, and appeal procedures set forth in this part. A decision by the Secretary or Under Secretary constitutes the final administrative determination of the Department of Agriculture.
Section 215.13(a) limits the right of appeal to those who have submitted substantive comments:
Individuals and organizations who submit substantive written or oral comments during the 30-day comment period for an environmental assessment, or 45-day comment period for a draft environmental impact statement (§ 215.6, 40 CFR 1506.10; FSH 1909.15, Chapter 20), except as provided for in paragraph (c) of this section, may file an appeal.
Finally, § 215.12(f) exempts from appeal those projects that the Forest Service finds not to have a significant effect on the environment and that are thus categorically excluded from certain National Environmental Policy Act (“NEPA”) requirements:
The following decisions and actions are not subject to appeal under this part ...: (f) Decisions for actions that have been categorically excluded from documentation in an [environmental assessment] or [environmental impact statement] pursuant to FSH 1909.15, Chapter 30, section 31.
In 2006, the district court declared all three of these regulatory provisions invalid. However, because TWS had not alleged a waiver of sovereign immunity in its complaint, the district court concluded it could not impose a remedy. The court allowed TWS time to amend its complaint.
In an unrelated action-while this case was proceeding in the district court in Montana-a district judge in the Eastern District of California granted nationwide injunctive relief with respect to §§ 215.20(b) and 215.12(f) of the 2003 regulations. Earth Island Inst. v. Pengilly, 376 F.Supp.2d 994 (E.D.Cal.2005). In view of this decision, TWS amended its complaint to request merely declaratory relief with respect to those two regulations. The claim for a nationwide injunction with respect to § 215.13(a) remained unchanged. TWS also amended its complaint to allege a waiver of sovereign immunity under the Administrative Procedure Act.
The district court granted TWS's motion for summary judgment and declared §§ 215.20(b) and 215.12(f) invalid. It imposed a nationwide injunction prohibiting the Forest Service from acting under § 215.13(a).
On appeal, the Forest Service argues that intervening Ninth Circuit and Supreme Court case law, stemming from Pengilly, renders the case non-justiciable. We consider de novo the question of standing. See Nevada Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 715 (9th Cir.1993).
In Earth Island Institute v. Ruthenbeck, the Forest Service challenged the district court's ruling in Pengilly on both standing and ripeness grounds. 490 F.3d 687 (9th Cir.2007). We held that while plaintiffs had standing to pursue their claims, only two of the provisions, 36 C.F.R. §§ 215.4(a) and 215.12(f), were ripe for review. Earth Island specifically mentioned only one project in its complaint, and only the latter two provisions were applicable in the context of that project. Ruthenbeck, 490 F.3d at 696.
The Supreme Court did not reach the ripeness question. Instead, it held that none of Earth Island's claims were justiciable because plaintiffs lacked standing:
To seek injunctive relief, a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.
Summers v. Earth Island Institute, --- U.S. ----, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009) (citation omitted). The Court reiterated that where the regulations being challenged do not require or forbid any action on the part of the respondents, standing is substantially more difficult to establish. Id. Earth Island lacked standing to challenge §§ 215.4(a) and 215.12(f), because it failed to identify an “application of the invalidated regulation that threaten[ed] imminent and concrete harm to the interests of [its] members.” Id. at 1150.
The Court elaborated that neither the vague desire to use the forest land in the future, nor the procedural harm, “ in vacuo,” of being denied the right to comment on Forest Service actions, was sufficient to confer Article III standing. Id. at 1150-51. As the Court explained, “ ‘[s]uch ‘some day’ intentions-without any description of concrete plans, or indeed any specification of when the some day will be' ”-do not support standing. Id. at 1151 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 564, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Earth Island's claim of standing was insufficient because it was “not tied to application of the challenged regulations, because it [did] not identify any particular site, and because it relate[d] to past injury rather than imminent future injury that is sought to be enjoined.” Id. at 1150.
The district court rejected the Forest Service's challenge to TWS's standing, reasoning that “[b]ecause the ARA's purpose is to establish notice and comment and appeals procedures, deprivation of the procedures injures the Plaintiffs in a sense contemplated by Congress.” In addition to this procedural injury, the district court found that TWS had standing because it suffered an “informational injury” in being denied notice of Forest Service actions. The nature of the informational injury, according to the court, was that TWS “would not know that action [wa]s being considered until it [wa]s too late and irreversible action as [sic] already been taken.”
On appeal, the Forest Service renews its challenge to TWS's standing. 1 It argues that Summers undermines TWS's alleged procedural injury given the Court's holding that “deprivation of a procedural right without some concrete interest that is affected by the deprivation-a procedural right in vacuo-is insufficient to create Article III standing.” Summers, 129 S.Ct. at 1151. The Forest Service also argues that because it does not challenge the district court's ruling on the notice and comment portions of § 215.20(b), any informational injury previously suffered has been remedied.
Recognizing the hurdle posed by Summers, TWS now argues that it has standing with respect to § 215.12(f) because that...
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