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SCOTUSwiki Preview: Summers v. Earth Island Institute

Below, Jonathan Ross previews next term’s Summers v. EII (No. 07-463). Jonathan was an ’08 summer associate at Akin Gump and is a student at Harvard Law School.  As always, the Summers SCOTUSwiki page, here, will continue to be updated throughout the upcoming term.

36 C.F.R. §§ 215.12(f) and 215.4(a) exclude certain Forest Service projects from statutory provisions that would otherwise require the Forest Service to make available administrative appeals and notice-and-comment procedures. In this case, the Court will consider the justiciability of challenges to the regulations, as well as whether the Ninth Circuit erred in affirming a nationwide injunction prohibiting the Forest Service from applying the regulations.  


In 1992, Congress enacted the Appeals Reform Act (ARA), which – among other things – required the U.S. Forest Service to provide both opportunities for notice and comments and an administrative appeals process for all land and resource management plans. In 2003, the Forest Service promulgated new regulations that carved out an exemption for the notice-and-comment and appeals requirements for two types of projects: fire rehabilitation activities on less than 4200 acres and salvage timber sales of 250 acres or less.  

This litigation arose from the application of these new 2003 regulations to the Burnt Ridge Project, a project in the Sequoia National Forest that would have resulted in the logging of approximately 238 acres of burned forest for sale as timber. In September 2003, consistent with the exemptions of 36 C.F.R. §§ 215.12(f) and 215.4(a), the Forest Service approved the project without providing either formal notice-and-comment procedures or an appeals process.

In December 2003, respondent Earth Island Institute and several other environmental groups filed a complaint in federal district court against the Forest Service, challenging the legality of the Burnt Ridge Project and – both facially and as applied to the Project – the 2003 Forest Service regulations. After the District Court issued a preliminary injunction against the Burnt Ridge Project, the Forest Service eventually withdrew its decision to implement the Project. The parties entered into a settlement agreement in which the Forest Service agreed not to restart the Burnt Ridge timber sale without first conducting an Environmental Impact Statement and allowing for notice, comment, and administrative appeals; in exchange, the conservation groups agreed to dismiss with prejudice their six claims for relief challenging the legality of the Project.

The conservation groups continued to pursue their direct facial challenges to the regulations. In 2005, the district court rejected the government’s arguments that the plaintiffs lacked standing and their claims were not ripe. Instead, the court invalidated five of the nine challenged provisions and issued an injunction that precluded the Forest Service from applying the invalid regulations anywhere in the country. The government appealed the court’s standing and ripeness rulings and the nationwide injunction, while the conservation groups appealed the district court’s ruling that four of the nine provisions were valid.

On appeal, the Ninth Circuit upheld the nationwide injunction with respect to two of the provisions at issue. Applying the two-part test established by the Supreme Court in Abbott Laboratories v. Gardner (1967), which requires that challenged regulations be fit for judicial decision and cause a hardship to the parties if review is withheld, the Ninth Circuit reasoned that because the two provisions (unlike the other seven) had been specifically applied to the Burnt Ridge Project, their factual context was sufficiently developed to make them fit for judicial decision, and sufficient hardship would result from a failure to review them. Moreover, the Court held, the conservation groups had standing to challenge these two provisions based on the statements submitted by one group member, Jim Bensman, who alleged that development in the forest had caused injuries that were both personal (because of its adverse affect on his recreational interest and his interest in the forest’s biological health) and procedural (due to his inability to comment on and appeal Forest Service decisions). The court rejected the government’s contention that Bensman had no cognizable injury, instead agreeing that Bensman’s inability to participate in the appeals process “may yield diminished recreational enjoyment of the national forests.” Moreover, the court reasoned, respondent Earth Island had standing to challenge the regulations because it alleged a procedural injury within the “zone of interests” that the ARA was intended to protect. Turning to the merits of the case, the Ninth Circuit held that the provisions were not entitled to Chevron deference because they conflicted with the plain language of the ARA.

Petition for Certiorari

The government’s petition for certiorari presents four questions, three of which relate to the justiciability of respondents’ challenges to the regulations and, at bottom, boil down to an argument that a facial challenge to the regulations should never have been allowed because the only agency action that could be properly reviewed was the Burnt Ridge Project itself and the application of the Forest Service regulations to the specific project. Citing the Court’s decision in Lujan v. National Wildlife Federation (1990) (NWF), the government first argues that a rule must be challenged in the limited context of its application (that is, once “the agency has issued a final decision on a site-specific project in which the regulations have been applied”), unless there is either a) a special statutory provision authorizing direct review of a regulation, or b) the regulation poses an Abbott Laboratories-type dilemma requiring the plaintiff “to choose between complying with newly imposed, disadvantageous restrictions and risking serious penalties for violation.” Because neither situation exists here, the government argues, the conservation groups lost the ability to challenge the Forest Service regulations once the site-specific application of the regulations was withdrawn as part of the Burnt Ridge Project settlement agreement.

The government’s second and third questions presented challenge the Ninth Circuit’s holdings on standing and ripeness. For both questions, the government’s arguments hinge on the success of its first argument – viz., that the conservation groups could only challenge the regulations in the context of their application to the Burnt Ridge Project. Focusing on the Bensman declaration on which the Ninth Circuit relied to establish standing, the government points out that Bensman did not discuss Burnt Ridge, nor did he discuss injuries resulting from the application of the regulations to any other specific project. The government also disputes the Ninth Circuit’s holding that respondents had suffered a “procedural injury,” arguing that a plaintiff will have standing from a procedural injury only if he has been injured by the actual result of the agency action conducted by the allegedly faulty procedure; a mere inability to participate is not sufficient. The government contends that the Ninth Circuit’s conception of a procedural injury conflicts with decisions from the Seventh and D.C. Circuits, which require that plaintiffs challenging a faulty procedure suffer an actual injury to their interest beyond simply being unable to participate in a governmental decision-making process. In challenging the ripeness of the conservation groups’ claims (the third question presented by the petition), the government argues that there is no Article III case or controversy because in the Burnt Ridge settlement agreement, the government agreed to forgo using the procedural exemptions if it restarted the Project, removing any concrete stake the Conservation Groups had in the outcome of the litigation.

Turning to the fourth question presented, the government argues that the Ninth Circuit improperly affirmed the district court’s nationwide injunction prohibiting enforcement of the regulations. The government contends, for example, that nationwide injunctions give plaintiffs the same benefits as would be available in a nationwide class action, but without requiring them to meet a class action’s procedural prerequisites. Moreover, the government adds, it is unfair to allow the plaintiffs to obtain nationwide relief by winning their first challenge to a regulation when a victory by the government would not have the same preclusive effect. Finally, the government depicts the nationwide injunction as a part of a Ninth Circuit pattern of providing remedies in environmental litigation that are out of touch with almost all the other circuits.

Opposing certiorari, the conservation groups focus on refuting the government’s overarching argument that the Ninth Circuit should not have permitted a facial challenge to the Forest Service regulations. They argue that the issuance of a final regulation is “final agency action,” as is the promulgation of a rule through notice-and-comment proceedings. Indeed, they note, the government itself has argued in other cases that the statute of limitations for challenging certain regulations was triggered by the regulations’ promulgation. The groups argue that their facial challenge to the final rules is ripe because Abbott Labs, rather than NWF, is controlling, and the Abbott Labs criteria are met because the provisions at issue here have already been applied, present purely legal issues, and don’t require additional “concreteness” or factual development. The NWF line of cases is distinguishable, the groups explain, because it deals with challenges to broader agency programs rather than, as in this case, challenges to specific regulations. The groups add that there is no precedent holding that facial challenges can never be ripe under the APA; moreover, this is not a pre-enforcement challenge because these Forest Service regulations were applied to the Burnt Ridge Project and to many other projects around the country.

Turning to the government’s standing and mootness arguments, the conservation groups emphasize that these arguments are relevant only if the government prevails on its argument that the regulations cannot be challenged on their face. But in any event, the groups contend, they can establish standing based not only on the affidavit from Jim Bensman, but also through additional affidavits (not challenged by the Forest Service) establishing injury to their members from the Burnt Ridge Project specifically, as well as the nationwide application of the regulations. They add that the Forest Service’s “refusal to provide official notice of proposed projects under the challenged regulations” also caused an “informational injury” that constitutes an injury in fact and falls within the “zone of interests” protected by the ARA, because the regulations prevent their members from knowing when these logging projects are going to take place and therefore render it impossible to challenge the specific applications of the regulations in time to make a difference.

As to the nationwide injunction, the conservation groups point out that the government does not provide any case law to support its contention that the APA doesn’t allow a district court to vacate illegal regulations. Even so, they continue, the nationwide injunction was permissible under the district court’s discretionary equitable powers.

Merits Briefing

The government’s argument on the merits rests on the assertion that the challenge to the Forest Service regulations is a case of pre-enforcement review. From that starting point, the government reiterates its argument (also made at the certiorari stage) that facial challenges to regulations are only permissible in two scenarios: (1) when specifically authorized by statute; or (2) when the plaintiff would otherwise be forced to choose between compliance with the regulation and risking serious penalties for violation. Both parties agree that the first scenario is not present here; the government maintains that the second scenario does not exist either because the challenged regulation does not affect primary conduct, and the groups suffer no disadvantage from having judicial review deferred to future site-specific challenges. Thus, the government argues, the regulations can only be challenged in the context of a site-specific application.

The government’s next three arguments flow from the need for a site-specific challenge First, they argue that the conservation groups lack standing because the Burnt Ridge Project was the only specific project considered below that was both governed by the challenged regulations and would have caused injury to respondents’ members; once the challenge to Burnt Ridge itself was settled, the groups lost their standing to challenge the regulations. Second, the controversy became moot after the settlement of the Burnt Ridge Project because the dispute over Burnt Ridge was the plaintiff’s only concrete stake in the litigation. Finally, the government again argues that the nationwide injunction was improper, because the APA does not grant district courts the authority to completely “set aside” challenged regulations, so the district court in this case only had the authority to grant a site-specific remedy.

The conservation groups reject the government’s contention that the case constitutes a pre-enforcement challenge, reasoning instead that the challenge is not an effort to block “enforcement actions” and, moreover, the regulations have – as the Forest Service concedes – been applied many times. The groups argue that even in the absence of specific statutory authorization, the Supreme Court’s ripeness jurisprudence permits facial challenges to regulations that are final agency action when two factors – the fitness of issues for judicial decision and hardship for the plaintiff – make review appropriate. Here, the groups argue, the regulations are final agency action because they have been published in the Code of Federal Regulations after notice-and-comment rulemaking and represent the consummation of the agency’s decision-making process; their claim is fit for judicial decision because it presents a purely legal question of statutory construction; and they would suffer hardship based on their procedural exclusion from Forest Service decisions and the difficulty that would be involved in making numerous timely site-specific challenges.

The groups next argue that if their challenge is ripe, it cannot be moot; moreover, it also cannot be moot because the Forest Service continued to apply the regulations to many other projects, even after the Burnt Ridge Project was settled. The groups claim standing based on their procedural injury, because the abandoned procedures were designed to protect their concrete interest, specifically granted in the ARA, in enjoying the forests.

Finally, the groups contend that the nationwide injunction was within the discretion of the District Court. Disputing the government’s claim that only a site-specific remedy was available, they emphasize that the government itself had initially asked for the injunction to be applied to the entire Eastern District of California (as opposed to nationwide),and did not argue that only a site-specific remedy was available until later in the case. The groups point out that the APA empowers courts to set aside unlawful agency action when necessary; “setting aside,” they counter, simply means vacating the regulation. They also contest the government’s preclusion argument, noting that in Califano v. Yamasaki (1979) the Court rejected the argument that the preclusion doctrine affects a district court’s equitable powers under the APA.