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Summers v. Earth Island Inst.

Supreme Court of the United States

October 8, 2008, Argued; March 3, 2009, Decided

No. 07-463


 [**1147]  [*490]   Justice Scalia delivered the opinion of the Court.

Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as "Earth Island.") They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal  [****7] process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations  [***7] in the absence of a live dispute over a concrete application of those regulations.

In 1992, Congress enacted ] the Forest Service Decisionmaking and Appeals Reform Act (Appeals Reform Act or Act), Pub. L. 102-381, Tit. III, § 322, 106 Stat. 1419, note following 16 U.S.C. § 1612. Among other things, this required the Forest Service to establish a notice, comment, and appeal process for "proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of 1974." Ibid.

] The Forest Service's regulations implementing the Act provided that certain of its procedures would not be applied to projects that the Service considered categorically excluded from the requirement to file an environmental impact statement (EIS) or environmental assessment (EA). 36 CFR §§ 215.4(a) (notice and comment), 215.12(f) (appeal) (2008). Later amendments to the Forest Service's manual of implementing procedures,  [****8] adopted by rule after notice and  [*491]  comment, provided that fire-rehabilitation activities on areas of less than 4,200 acres, and salvage-timber sales of 250 acres or less, did not cause a significant environmental impact and thus would be categorically exempt from the requirement to file an EIS or EA. 68 Fed. Reg. 33824 (2003) (Forest Service Handbook (FSH) 1909.15, ch. 30, § 31.2(11)); 68 Fed. Reg. 44607 (FSH 1909.15, ch. 30, § 31.2(13)). This had the effect of excluding these projects from the notice, comment, and appeal process.

In the summer of 2002, fire burned a significant area of the Sequoia National Forest. In September 2003, the Service issued a decision memo approving the Burnt Ridge Project, a salvage sale of timber on 238 acres damaged by that fire. Pursuant to its categorical exclusion of [**1148]  salvage sales of less than 250 acres, the Forest Service did not provide notice in a form consistent with the Appeals Reform Act, did not provide a period of public comment, and did not make an appeal process available.

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555 U.S. 488 *; 129 S. Ct. 1142 **; 173 L. Ed. 2d 1 ***; 2009 U.S. LEXIS 1769 ****; 77 U.S.L.W. 4146; 39 ELR 20047; 67 ERC (BNA) 1961; 72 Fed. R. Serv. 3d (Callaghan) 1183; 21 Fla. L. Weekly Fed. S 670



Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 2007 U.S. App. LEXIS 13380 (9th Cir. Cal., 2007)Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 2007 U.S. App. LEXIS 13376 (9th Cir. Cal., 2007)

Disposition: Reversed in part and affirmed in part.


Forest, regulations, concrete, national forest, projects, notice, salvage-timber, environmental, sales, organizations, recreational, imminent, plans, injunction, realistic, parcels, procedural right, visited, courts, Appeals, timber, acres, site, injury in fact, redress, implementing, allegations, nationwide, exempted, appeal procedure

Administrative Law, Agency Rulemaking, Notice & Comment Requirements, Environmental Law, Natural Resources & Public Lands, Forest Management, Civil Procedure, Justiciability, Case & Controversy Requirements, Actual Controversy, Constitutional Law, Case or Controversy, Standing, Elements, Injury in Fact, Burdens of Proof, Personal Stake, Particular Parties, Administrative Proceedings & Litigation, Jurisdiction, Third Party Standing, General Overview, Pleading & Practice, Pleadings, Supplemental Pleadings, Parties, Joinder of Parties