Reversing a district court decision, the Ninth Circuit Court of Appeals has restored U.S. Forest Service (FS) rules limiting appeals of the agency’s land management decisions. The Wilderness Soc’y, Inc., v. Ray, No. 06-35565 (9th Cir. 9/22/10). The rules at issue were (i) 36 C.F.R. section 215.20(b), which forbids administrative appeal of any decision made by the secretary or undersecretary of agriculture; (ii) 36 C.F.R. section 215.12(f), which exempts from administrative appeal any agency decision on projects deemed not to have a significant effect on the environment and that are categorically excluded from the need for an environmental analysis; and (iii) 36 C.F.R. section 215.13(a), which allows appeal of projects only by those who submitted substantive comment during the public comment period.

In 2003, plaintiffs challenged the three rules, which had been written to implement the Forest Service Decisionmaking and Appeals Reform Act of 1992. In 2006, the district court determined that the rules were inconsistent with the Act and declared them invalid.  

Instead of focusing on the issue of whether the rules were valid, the appeals court addressed only whether plaintiffs had standing to sue. The court cited Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009), which imposed strict requirements on plaintiffs seeking to challenge FS rules. In Summers, the U.S. Supreme Court ruled that an environmental group wishing to sue must produce a sworn affidavit from a particular person showing that he or she is suffering “injury in fact.” And, to obtain injunctive relief, “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.” Ruling that plaintiffs failed to meet this test, the court dismissed plaintiffs’ claims as nonjusticiable.