Summers v. Earth Island Institute (07-463)

Oral argument: Oct. 8, 2008

Appealed from: United States Court of Appeals, Ninth Circuit (June 8, 2007)

STANDING, RIPENESS, ADMINISTRATIVE PROCEDURE ACT, AGENCY ACTION, FOREST SERVICE DECISIONMAKING AND APPEALS REFORM ACT, SALVAGE LOGGING

Earth Island Institute and other conservation groups sued the United States Forest Service after it authorized application of regulations 36 C.F.R. 215.4(a) and 36 C.F.R. 215.12(f) to a planned salvage logging project in the Sequoia National Forest. The conservation groups claimed that the regulations, which limit public notice, comment and administrative appeals, were invalid under the Administrative Procedure Act, which protects the ability of the public to appeal administrative actions. The parties settled the dispute over the regulations as they were applied to the salvage logging project, but the conservation groups continued the suit as a direct facial challenge to the regulations themselves. At issue before the Supreme Court in this case is whether judicial review of the regulations was proper, whether the conservation groups established standing and ripeness to challenge the regulations after settling the controversy over the regulations’ application to the specific project, and whether issuing a nationwide injunction was a proper remedy. The outcome of the case will influence federal agencies’ requirements to provide administrative appeals, the ability of the public to challenge administrative actions, and the scope of equitable remedies against improper applications of agency regulations.

· [Question(s) presented]

· [Issue(s)]

· [Facts]

· [Discussion]

· [Analysis]

Question(s) presented

1. Whether the Forest Service’s promulgation of 36 C.F.R. 215.4(a) and 215.12(f), as distinct from the particular site-specific project to which those regulations were applied in this case, was a proper subject of judicial review.

2. Whether respondents established standing to bring this suit.

3. Whether respondents’ challenge to 36 C.F.R. 215.4(a) and 215.12(f) remained ripe and was otherwise judicially cognizable after the timber sale to which the regulations had been applied was withdrawn, and respondents’ challenges to that sale had been voluntarily dismissed with prejudice, pursuant to a settlement between the parties.

4. Whether the court of appeals erred in affirming the nationwide injunction issued by the district court.

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Issue(s)

Whether the APA and Supreme Court precedent allow parties to directly challenge the Forest Service’s regulations limiting public notice, comment, and administrative appeals for certain projects even if the parties are not simultaneously challenging a site-specific application of the regulations.

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Facts

In 1992, Congress enacted the Forest Service Decisionmaking and Appeals Reform Act (“ARA”). See Brief for Petitioners, Priscilla Summers et al. at 2. The ARA requires the United States Forest Service to establish a notice and comment process for Forest Service projects concerning land and resource management plans. See Brief for Respondents, Earth Island Institute et al. at 1. In 2002, the Forest Service enacted regulations 36 C.F.R. 215.4(a) and 36 C.F.R. 215.12(f), limiting administrative appeals and public comment on projects categorically excluded from documentation in an environmental assessment (“EA”) or environmental impact statement (“EIS”) under the National Environmental Policy Act of 1969 (“NEPA”). See Brief for Petitioners at 3.

Timber sales are categorically excluded from documentation in an EA or EIS under NEPA. See Brief for Respondents at 3. In 2003, as part of its Burnt Ridge Project, the Forest Service planned to sell timber from salvage logging of 238 acres of California’s Sequoia National Forest that had been destroyed by fire the previous summer. See id. at 6. Because timber sales are categorically excluded from an EA or EIS under NEPA, the Forest Service’s 2002 regulations limited public comment and appeals regarding the Burnt Ridge Project. See id.

Earth Island Institute, Heartwood, the Center for Biological Diversity, and the Sierra Club (“conservation groups”) sued the Forest Service, the Secretary of Agriculture, and two individual Forest Service officials (“Forest Service”) in the District Court of the Eastern District of California. See Brief for Respondents at 6. The conservation groups challenged the legality of the Burnt Ridge Project and claimed that 36 C.F.R. 215.4(a) and 36 C.F.R. 215.12(f) violated the ARA. See Brief for Petitioners at 2. The conservation groups moved for a temporary restraining order and preliminary injunction barring implementation of the Burnt Ridge Project. See id.

The conservation groups also brought a facial challenge to the 2002 Forest Service regulations in general themselves, alleging that the regulations violated the ARA. See Brief for Petitioners at 2. To establish standing to bring the facial challenge, the conservation groups presented testimony by Jim Bensman, a member of Heartwood, that the Forest Service’s regulations adversely affected his use and enjoyment of forests. See id. at 5–6. Specifically, Bensman alleged injury resulting from his inability to appeal projects throughout the country subject to the Forest Service’s regulations. See id.

In 2003, the district court issued a preliminary injunction barring implementation of the Burnt Ridge Project. See Brief for Petitioners at 5. In 2004, the Forest Service reached a partial settlement agreement with the conservation groups where the Forest Service agreed to prepare an EA or an EIS before reissuing the Burnt Ridge Project. See id. at 6. In turn, the conservation groups agreed to dismiss with prejudice their claims alleging the illegality of the Burnt Ridge Project. See id. However, the conservation groups continued their challenge of the Forest Service’s regulations.

In 2005, the district court held that five aspects of the Forest Service’s 2002 regulations, including 36 C.F.R. 215.4(a) and 36 C.F.R. 215.12(f), violated the ARA. See Earth Island Institute v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal. 2005). A few months later, the district court issued another order, holding that the preliminary injunction barring implementation of the Burnt Ridge Project applied nationwide. See Brief for Petitioners at 6.

The United States Court of Appeals for the Ninth Circuit affirmed the district court's ruling that the conservation groups established standing. See Earth Island Institute v. Ruthenbeck, 490 F.3d 687, 690691 (Cal. 2007). Because a regulation under the Administrative Procedure Act (“APA”) becomes ripe for judicial review after it has been applied, the court held that the conservation groups’ challenges to 36 C.F.R. 215.4(a) and 36 C.F.R. 215.12(f) were ripe because the Forest Service had applied the regulations to the Burnt Ridge Project. See Brief for Petitioners at 8.In addition,the Ninth Circuit affirmed the district court's ruling that 36 C.F.R. 215.4(a) and 36 C.F.R. 215.12(f) were invalid because they were inconsistent with the ARA, and upheld the district court’s nationwide against the enforcement of the regulations. See id.In January 2008, the Supreme Court granted certiorari to determine whether the conservation groups established standing and ripeness and whether the district court's review and remedy was proper.

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Discussion

The Supreme Court’s decision will have an impact with respect to standing and ripeness on the procedure that conservation groups must follow when challenging administrative regulations. See Brief of Amicus Curiae Pacific Legal Foundation in Support of Neither Party at 12. The decision will also clarify whether a district court may issue a decision that affects the entire nation, as opposed to only the states within its jurisdiction. See Brief for Petitioners at 40.

The Forest Service advances four main arguments to support its contention that the Supreme Court should reverse the Ninth Circuit’s judgment and remand the case with instructions to dismiss the complaint. See Brief for Petitioners at 48. First, it argues that the agency action subject to judicial review in this case was the Burnt Ridge Project, not the Forest Service regulations implementing the ARA. See id. at 14. Second, it argues that the conservation groups failed to establish standing to challenge the regulations at issue in this case. See id. at 28. Third, it argues that the suit became moot when the parties settled their dispute over the Burnt Ridge Project and the conservation groups’ challenges to that project were dismissed with prejudice. See id. at 34. Lastly, it argues that the nationwide injunction was improper. See id. at 40.

In turn, the conservation groups advance five main arguments to support their contention that the Supreme Court should affirm the Ninth Circuit’s judgment. See Brief for Respondents at 1248. First, they argue that the ARA was a final agency action. See id.at 12. Second, they argue that the ARA is ripe for review. See id. at 18. Third, they argue that this case is not moot. See id. at 37. Fourth, they argue that the conservation groups have standing. See id. at 39. Lastly, they contend that the district court did not abuse its discretion in setting aside the regulations. See id. at 48.

If the Supreme Court decides in favor of the Forest Service, it will make it more difficult for conservation groups to establish standing to challenge administrative regulations in the future. See Brief of Pacific Legal Foundation at 3. As expressed by Pacific Legal Foundation, a non-profit legal foundation advocating individual rights and limited government, a decision in favor of the Forest Service would effectively bar the ability of conservation groups to bring facial challenges to administrative regulations. See id. Pacific Legal Foundation argues that conservation groups would need to establish standing either by alleging factual injury or danger of a specific substantive injury that the Court has the power to remedy. See id. at 2.

On the other hand, if the Supreme Court decides in favor of the conservation groups, the conservation groups may more easily establish standing to challenge administrative regulations in the future. See Brief of Pacific Legal Foundation at 6. Amici supporting the Forest Service argue that since procedural injury is an easier standard to establish standing than injury in fact, a decision favoring the conservation groups may mean more facial challenges to administrative regulations. See id.; Brief of Amicus Curiae American Forest & Paper Association, et al. in Support of Petitioner at 1. Amicus American Forest & Paper Association further contends that more facial challenges may result in more courts issuing nationwide injunctions against administrative regulations. See Brief of American Forest & Paper Association at 1.

In addition, the resolution of this case will have an impact on businesses that are heavily regulated by administrative regulations. See Brief of American Forest & Paper Association at 1.Businesses such as the National Association of Home Builders and the American Farm Bureau Federation have an interest in a stable regulatory structurebecause they "invest substantial resources to plan for, and comply with, a known set of regulations." Id.

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Analysis

Were the Forest Service regulations a proper subject of judicial review?

The APA allows members of the public to seek judicial review of an agency action if they have suffered a legal wrong because of the action. 5 U.S.C. § 702. An “agency action” includes “the whole or part of an agency rule . . . or the equivalent.” 5 U.S.C. § 551(13). One of the main issues in this case is whether the Forest Service regulations constituted an “agency action” under the APA.

The Forest Service argues that broad regulations rarely qualify as agency actions: regulations may be challenged only to the extent that an agency has applied them to a specific incident. See Brief for Petitioners at 16. According to the Forest Service, the only agency action for which the APA compelled review was the Burnt Ridge Project, not the Forest Service regulations themselves. See id. at 14. The APA authorizes judicial review of agency action in two special circumstances: review is proper if a statute expressly allows it, and review of “final agency action” is proper if no other adequate judicial remedies exist for the injured party. 5 U.S.C. § 704. No such statute exists in this case, and the Forest Service contends that judicial review was also not available under § 704 because the regulations were not “concrete” Forest Service action. Id. at 16.

The conservation groups, however, argue that the regulations were, in fact, “final agency action” under the APA, and that their challenge of the regulations was thus judicially reviewable. Brief for Respondents at 12. Although the APA does not define “final,” the conservation groups argue that the Supreme Court has given “final” a “common-sense meaning,” making agency actions final if they (1) constitute the “consummation” of an agency’s decisionmaking process and (2) determine legal rights. Id. at 13; Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 151 (1967). According to the conservation groups, the Forest Service regulations satisfied the Supreme Court’s practical definition of “final agency action”—the regulations are published in the Code of Federal Regulations and are “definitive” rules that determine the public’s legal rights in agency proceedings. Brief for Respondents at 13–14.

The Forest Service stresses that although review of the Burnt Ridge Project may have been proper, review of the broad regulations was not authorized under either the APA’s “final agency action” provision or under Supreme Court precedent. Brief for Petitioners at 19–20. The Forest Service argues that the conservation groups did not suffer from an injury for which no other adequate remedy existed in court because challenges to Forest Service regulations that have already been applied to individual projects are sufficient remedies. See id. at 20. The Forest Service distinguishes between substantive and procedural injury by noting that the regulations govern the agency’s administrative procedures and not the “primary conduct” of the conservation groups. See id. at 22. The Forest Service argues that the regulations were mere procedural requirements that did not pressure the conservation groups to face a weighty dilemma like that in Abbott Laboratories v. Gardner, where agency regulations required the challenging parties to either alter their primary conduct or face serious legal penalties. See id.The Forest Service compares the conservation groups’ challenge to that in Lujan v. National Wildlife Federation, where the plaintiffs challenged a Bureau of Land Management program that consisted of approximately 1,250 actions. See Brief for Petitioners at 14–15. In Lujan, the Supreme Court held that the Bureau’s program did not constitute an “agency action” and that the plaintiffs could only challenge the individual 1,250 actions. Id.

The conservation groups distinguish the Forest Service’s use of Lujan by arguing that there, it involved a challenge to a “nebulous agency ‘program,’” rather than the “discrete agency action” of issuing final regulations. Brief for Respondents at 16. As a result, Lujan does not dictate that the Forest Service’s issuance of final regulations was not a reviewable agency action. See id. In addition, the conservation groups argue that the absence of a special review provision does not mean that the ARA does not allow courts to directly review ARA regulations. See id. at 18.

Did the conservation groups establish standing?

To satisfy the standing requirements of Article III, plaintiffs must establish that they have suffered “injury in fact” by showing a “concrete and particularized” injury that is “actual or imminent.” Brief for Respondents at 39; Friends of the Earth, Inc. v.Laidlaw, 528 U.S. 167, 180–181 (2000). The United States Court of Appeals for the Ninth Circuit held that the conservation groups established both personal injury and procedural injury, and the parties agree that the conservation groups likely established injury in fact from the Forest Service regulations as applied to the Burnt Ridge Project. See Earth Island Institute v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007); Brief for Petitioners at 28. Because the parties settled the dispute over the as-applied regulations, however, the Forest Service contends that the conservation groups did not establish standing to challenge future—and thus, not yet concrete or imminent—applications of the regulations. See Brief for Petitionersat 29. In the Forest Service’s view, the Ninth Circuit’s finding that continued application of the regulations could result in “diminished enjoyment of ‘the national forests’” is too general to satisfy Article III’s injury requirements. Id.

The conservation groups assert that they established procedural standing because the Forest Service regulations threatened the groups’ procedural rights of notice, comment, and appeal. See Brief for Respondents at 39–40. Because they suffered a procedural injury, the conservation groups claim, they did not have to establish a stringent standard of immediacy and redressability. See id.at 40; Lujan, 504 U.S. at 573. Regardless of this lower standard, the groups argue that they did establish a concrete interest – the use and enjoyment of National Forests – that was immediately threatened by the Forest Service’s violation of the ARA’s procedural requirements. See Brief for Respondents at 40, 46. The conservation groups contend that not only did they suffer injury in fact from the denial of comment and appeal rights regarding Burnt Ridge, but also that they suffered “similar ongoing injuries” from the Forest Service’s continued application of the regulations to other projects across the country. Id. at 40. The conservation groups assert that these ongoing injuries “would have sufficed for standing even without Burnt Ridge.” Id.at 40–41, 44.

The Forest Service, however, rejects the conservation groups’ procedural injury argument because the groups’ inability to participate in administrative appeals and public notice and comment “is not, in and of itself, a judicially cognizable ‘injury in fact.’” Brief for Respondents at 30, 32. As a result, the Forest Service argues, the conservation groups could not show that they had a “concrete stake” in the outcome of the substantive Forest Service decision that results from the procedures. Id. at 30–31.

Did the conservation groups' facial challenge remain ripe after the Burnt Ridge settlement?

Because the Forest Service insists that the conservation groups cannot broadly challenge the regulations, it argues that the parties’ settlement of the Burnt Ridge Project dispute made the conservation groups’ suit moot. See Brief for Petitioners at 34. According to the Forest Service, the Burnt Ridge Project was the only site-specific application of the regulations, so the settlement “provided respondents all the relief they sought.” Id.at 36. The Ninth Circuit, however, held that the challenge to 36 C.F.R. 215.4(a) and 36 C.F.R. 215.12(f) remained ripe even after the parties’ settlement because the challenge rested on a factually concrete application of the regulations. See Earth Island Institute v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007).

The Forest Service contends that the Ninth Circuit erred in this judgment because after the parties’ settlement, no controversy remained. See Brief for Petitioners at 36. The conservation groups, on the other hand, argue that a controversy still exists because the Forest Service continues to apply the regulations to “thousands” of Forest Service projects across the country, and that this continued application includes projects affecting the conservation groups. See Brief for Respondents at 38. The conservation groups argue that the testimony of Jim Bensman and others established that the groups’ members suffered broad, ongoing hardship, and that the regulations significantly impaired the members’ participation in the health and management of several National Forests. See id. at 29. The conservation groups further claim that the Forest Service regulations were ripe for review even on a purely legal basis because they were clear statements of the agency’s position and had already been applied several times. See id. at 25–26.

Was the nationwide injunction proper?

The parties disagree over whether the injunction, if one were to be granted, should have been issued nationwide. The Ninth Circuit held that the language of the APA required the district court to set aside 36 C.F.R. 215.4(a) and 36 C.F.R. 215.12(f) because they were unlawful agency actions. See 5 U.S.C. § 706; Earth Island Institute v. Ruthenbeck, 490 F.3d 687. The conservation groups agree with the Ninth Circuit’s view that the unlawful agency action was the Forest Service’s issuance of the regulations. See Brief for Respondents at 48. The Forest Service, however, argues that the unlawful agency action was the site-specific application of the regulations to the Burnt Ridge Project, and consequently the geographical scope of the injunction should not have extended beyond the project. See Brief for Petitioners at 41–42. The conservation groups claim that the nationwide injunction was proper because the APA does not limit courts’ authority to grant equitable relief on a nationwide basis. See Brief for Respondents at 56–57.

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Conclusion

This case rests on whether individuals may appeal agency regulations only as they are applied to specific agency actions, or whether individuals may challenge the validity of regulations without linking the challenge to a specific agency project. The Forest Service argues that under the APA, only as-applied regulations may be challenged. The conservation groups, on the other hand, argue that the APA supports direct, facial challenges to agency regulations. The Supreme Court’s decision will affect the rights of individuals to contest unlawful agency regulations and the scope of federal agencies’ responsibilities to provide administrative appeals. The decision will likely clarify the balance between agencies’ autonomy and their transparency toward the public, which will have ramifications for advocacy groups, industry members, and federal agencies.

Authors

Prepared by: Lucienne Pierre and Kaci White

Edited by: Hana Bae

Additional Sources

· About Administrative Law

· ScotusWiki

· McClatchy, “Calif. logging venture is next Supreme Court environment showdown”

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