Supreme Court Tightens Standing Requirements For Recreational Users Challenging Forest Service Actions
Summers v. Earth Island Institute,___U.S. ___(March 3, 2009, Case No. 07-463)
By Elizabeth S. Anderson
On March 3, 2009, the United States Supreme Court determined that Respondents, a group of organizations dedicated to protecting the environment, did not have standing to challenge certain United States Forest Service (“Service”) regulations respecting salvage timber sales. In reversing the Ninth Circuit, the Court held that while Respondents’ affidavit of a member’s recreational use was sufficient to establish standing initially, once a settlement was reached, the affidavit was insufficient to provide standing to proceed, even though the trial court proceeded to adjudicate the merits of Respondents’ challenge. The Court also held that Respondents’ affidavit that a member had suffered injury in the past from development on Service land, had visited many National Forests, and had plans to visit several unnamed National Forests in the future was insufficient because it failed to allege that “any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of [the affiant] to enjoy the National Forests.”
In the summer of 2002, a fire burned a significant portion of the Sequoia National Forest. In September 2003, the Service issued a decision memorandum approving the “Burnt Ridge Project,” a salvage sale of timber on 238 acres. The 1992 Forest Service Decision-Making and Appeals Reform Act required the Service to establish a notice, comment, and appeal process for certain Service actions. The Service regulations implementing the Act, however, exempt from these requirements projects that the Service consider categorically excluded from the requirement to file an environmental impact assessment or environmental assessment. In this case, the Service determined that the salvage timber sale was categorically excluded from the requirement to file an environmental impact assessment or environmental assessment; therefore, the Service did not provide notice, a public comment period, or an appeal process.
Respondents filed a complaint in the Eastern District of California in December 2003 challenging the Service’s regulations. The District Court granted a preliminary injunction against the salvage timber sale and shortly thereafter the parties settled their dispute over the Burnt Ridge Project. Nonetheless, the District Court proceeded to adjudicate the merits of Respondents’ claim and invalidated the regulations. The Ninth Circuit affirmed on this point and the Service sought review as to whether Respondents had standing to challenge the regulations.
The Court explains that “standing” is one of several doctrines that reflect the fundamental limitation of courts to “redress or prevent actual or imminently threatened injury.” The doctrine of standing requires the plaintiff to allege a personal stake in the outcome of the controversy. To seek injunctive relief, as is the case in this dispute, Respondents were required to show that they were “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 injury.”
To meet this standard, Respondents relied upon their members’ recreational interests in the National Forests. Specifically, Respondents provided two affidavits. The first was from a member that asserted that he repeatedly visited the Burnt Ridge site, had plans to do so again, and believed his interests in viewing the forest would be harmed if the salvage sale went forward without incorporating his ideas, which he would have suggested had the Service had a public comment period. The second affidavit was from a member that asserted that he had suffered injury in the past from development on Service land, had visited many National Forests, and had plans to visit several unnamed National Forests in the future. The Court determined that neither affidavit met the requisite standard to establish standing.
With respect to the first affidavit, the Court determined that although it was sufficient to originally establish standing, Respondents’ injury in fact was remedied when the parties settled their differences and, therefore, Respondents did not thereafter retain standing to challenge the basis for the allegedly unlawful action. With respect to the second affidavit, the Court determined that it failed to allege that “any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of [the affiant] to enjoy the National Forests” and that it therefore fails to meet the requirement that Respondents show a concrete, particularized injury in fact.
Four justices joined in a dissenting opinion.
Elizabeth S. Anderson