LAWRENCE J. O'NEILL, District Judge.
This action challenges two of the public notice, comment, and administrative appeal regulations that the defendant United States Forest Service ("Forest Service") promulgated to implement the Forest Service Decisionmaking and Appeals Reform Act of 1992, Pub.L. 102-381, Title III, § 322, 106 Stat. 1419 (16 U.S.C. § 1612 note) (October 5, 1991) ("ARA"). The challenged provisions are codified at 36 C.F.R. §§ 215.4(a) and 215.12(f) (2003).
Prior to 1992, the Forest Service "provided a post-decision administrative appeals process, 36 C.F.R. pt. 217, for agency decisions documented in a `decision memo,' `decision notice,' or `record of decision.'" Earth Island v. Ruthenbeck, 490 F.3d 687, 691 (2007). In March 1992, the Forest Service proposed a new regulation that would have eliminated post-decision administrative appeals for all decisions except those approving forest plans or amendments or revisions to forest plans.
In response, Congress enacted the ARA later in 1992. Among other things, the ARA 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 ... and [to] modify the procedure for appeal of decisions concerning such projects." ARA § 322(a).
After the ARA was passed, the Forest Service published a final rule revising the notice, comment and appeal procedures. 68 Fed. Reg. at 33,582 (June 4, 2003) ("2003 Rule"). This rule governs "projects and activities implementing land and resource management plans on National Forest System lands." Id. The new regulations are codified at 36 C.F.R. § 215 et seq. ("215 Regulations").
Plaintiffs argue that two the 215 Regulations are manifestly contrary to the ARA. Specifically, Plaintiffs claim that the Forest Service has violated the ARA § 322(a) and (c) by issuing Sections 215.12(f) and 215.4(a), which exempt all decisions that are categorically excluded from National Environmental Policy Act ("NEPA") analysis
36 C.F.R. § 215.12(f).
36 C.F.R. § 215.4(a).
The regulations at issue in this action have been challenged previously. The procedural history of the prior challenge is instructive on legal issues raised in this action. Accordingly, this Court briefly summarizes the history of the prior action and its three published court opinions.
Plaintiffs Earth Island Institute and Sequoia Forestkeeper, among others, challenged the 215 Regulations in a separate challenge styled Earth Island Institute v.
Pengilly, 376 F.Supp.2d 994, 1000-1001. The district court found Mr. Bensman's declaration "has established sufficient injury that is fairly traceable to the actions of the Forest Service in implementing the ARA[.]" Id. at 1001. The court reasoned:
Id. The district court rejected the Forest Service's argument that Mr. Bensman's declaration was insufficient because it was not tied to a specific project:
Id.
The court further found that plaintiffs' challenge to the 215 Regulations was ripe for review. The court found that "there can be little doubt that the eight regulations challenged by Plaintiffs are `final actions' by the Forest Service for purposes of the APA. The regulations are the Forest Service's definitive position on how to best implement the ARA and have been enforced on numerous occasions." Pengilly, 376 F.Supp.2d at 1002. In determining whether review was ripe, the court focused on the plaintiffs' facial challenge of the 215 Regulations:
Id.
After concluding that the plaintiffs had standing and the action was ripe for review, the court turned to the merits of the action. After considering the parties' arguments, the Pengilly court found five of the 215 Regulations invalid, including the two at issue in this action. The court found that those regulations were manifestly contrary to their governing statute, the ARA. The court severed the invalid provisions from the 215 Regulations and issued a nationwide injunction enjoining their implementation. See id.
The Forest Service appealed the Pengilly decision, which resulted in the Ninth Circuit opinion of Earth Island Institute v. Ruthenbeck, 490 F.3d 687 (2006) ("Ruthenbeck"). In Ruthenbeck, the Ninth Circuit agreed with the district court that the plaintiffs had established standing. The Ruthenbeck court found that plaintiffs had established "injury in fact" because "Bensman's preclusion from participation in the appeals process may yield diminished recreational enjoyment of the national forests." 490 F.3d at 693. In addition, the Ruthenbeck court found that Earth Island "has also alleged sufficient procedural injury to support standing, relying on the argument that the ARA is a procedural statute giving rise to a procedural injury within the `zone of interests' Congress intended to protect." Id. The court reasoned that the 215 Regulations "are procedural regulations governing the opportunity for public comment. The ARA does not address any substantive Forest Service program and governs only the process." Id. Because the ARA and NEPA are procedural statutes, the court concluded: "Procedural and informational injuries may be the basis for injury in fact for standing purposes." Id. Because Earth Island was precluding from appealing the Burnt Ridge Project because the Forest Service applied Section 215.12(f), "the loss of that right of administrative appeal is sufficient procedural injury in fact to support a challenge to the regulation." Id.
"While Earth Island ... established the sufficient injury for standing purposes," the Ninth Circuit found that "it has not shown the sort of injury that would require immediate review of" any of the regulations challenged, except for those associated with the Burnt Ridge Project. Ruthenbeck, 490 F.3d at 696. The court emphasized that a regulation is not ripe for review "until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in fashion that harms or threatens to harm him." Id. (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)) (emphasis in Ruthenbeck). The Burnt Ridge Project was the only project specifically referenced in the complaint. Only Sections 215.4(a) and 215.12(f) applied in the context of that project. Because the record had been developed factually for Sections 215.4(a) and 215.12(f), review of those regulations was ripe. On the other hand, the factual components for all of the challenged regulations had not been fleshed out. "The record [was] speculative and incomplete with respect to the remaining regulations, so the issues are
Having found that Sections 215.4(a) and 215.12(f) were ripe for review, the Ruthenbeck court considered the merits of Earth Island's challenge to those sections only. The court affirmed the district court's invalidation of Sections 215.4(a) and 215.12(f) and the nationwide injunction against their enforcement, finding that these regulations were "manifestly contrary to both the language and the purpose of the ARA." Id. at 699. The court remanded the action with instructions to vacate the judgment and injunction with respect to the remaining regulations for "lack of controversy ripe for review." Id.
The Supreme Court of the United States granted review of the Ruthenbeck decision on the issue of standing, resulting in Summers v. Earth Island Institute, 555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ("Summers"). The Supreme Court focused on a fact that had not been addressed directly by the lower courts: The parties settled their dispute over the Burnt Ridge Project prior to the Pengilly decision. Although the Burnt Ridge Project was settled, and after noting that "the Burnt Ridge timber sale is not an issue in this case," 376 F.Supp.2d at 999, the district court went on to adjudicate the merits of Earth Island's challenges. Similarly, the Ninth Circuit relied on the Burnt Ridge Project for its ripeness decision. As discussed above, the Ninth Circuit found that the regulations not at issue in the Burnt Ridge Project were not ripe for adjudication because there was no "case or controversy" before the court as to those regulations to sustain a facial challenge. Ruthenbeck, 490 F.3d at 696. The Ninth Circuit considered the merits of the two regulations applicable to the Burnt Ridge Project and affirmed the district court's determination that they were contrary to law.
The Summers Court found that the plaintiffs
The Court also found that the plaintiffs "identified no other application of the invalidated regulations that threatens imminent harm to the interests of their members." Id. at 495, 129 S.Ct. 1142. Specifically, Mr. Bensman's declaration was insufficient to establish standing for a number of reasons. Mr. Bensman declared that he had suffered injury in the past from development in the national forests. "That does not suffice for several reasons: because it was not tied to application of the challenged regulations,
The Court further rejected the plaintiffs' position that they had standing to challenge the 215 Regulations based on the alleged procedural injury. The plaintiffs argued that they suffered an injury in fact because the regulations denied them the ability to file comments on some Forest Services actions, and that they will continue to be so denied. The Court found that the:
Summers, 555 U.S. at 496-97, 129 S.Ct. 1142. Because Burnt Ridge was "off the table," and Mr. Bensman's declaration was insufficient, the plaintiffs had failed to establish that they had standing to pursue their challenge of the 215 Regulations. Having ruled on the issue of standing, the Court did not reach the issues of whether the challenge to the regulations ripe or whether the nationwide injunction would be an appropriate form of relief. Id. at 500-01, 129 S.Ct. 1142.
The complaint asserts a facial challenge to Sections 215.4(a) and 215.12(f) pursuant to the Administrative Procedures Act, 5 U.S.C. § 701 et seq. ("APA"). Although it is a facial challenge, Plaintiffs identify several Forest Service projects or permits that the Forest Service has implemented these allegedly illegal regulations. Plaintiffs' complaint specifically includes allegations that the challenged regulations have been implemented in the following projects and permits, among others:
The parties filed cross-summary judgment motions, which have been briefed fully. In addition, the Forest Service has moved to sever and remand Plaintiffs' challenges to those Forest Service projects and permits that are outside the Eastern District of California.
Having considered the parties' arguments, exhibits, the administrative record and the applicable legal authorities, this Court found these motions suitable for a decision without oral argument. Accordingly, this Court vacated the February 2, 2012 hearing pursuant to Local Rule 230(g). This Court issues the following order to address the jurisdictional issues raised in the summary judgment motions. This Court shall address the Forest Service's motion to sever separately. If this Court finds that it has jurisdiction over this action, this Court shall address the merits of Plaintiffs' claims separately.
Fed.R.Civ.P. 56 permits a "party against whom relief is sought" to seek "summary judgment on all or part of the claim." In a summary judgment motion, a court must decide whether there is a "genuine issue as to any material fact." Fed.R.Civ.P. 56(c); see also, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). A party seeking summary judgment/adjudication bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing of sufficient evidence to establish an essential element of the nonmoving party's claim, and on which the non-moving party bears the burden of proof at trial. Id. at 322, 106 S.Ct. 2548. "The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "If the party moving for summary judgment meets its initial burden of identifying for the court those portions of the material on file that it believes demonstrates the absence of any genuine issues of material fact," the burden of production shifts and the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (quoting Fed.R.Civ.P. 56(e)).
The first issue the parties address is whether Plaintiffs have standing to challenge the ARA. Plaintiffs affirmatively move for judgment on grounds that they have standing to pursue this action, whereas the Forest Service moves for judgment in their favor on grounds that Plaintiffs lack standing.
Pursuant to the limited jurisdiction of federal courts imposed by Article III of the U.S. Constitution, "[e]xcept when necessary in the execution of that function, courts have no charter to review and revise legislative and executive action." Summers, 555 U.S. at 492, 129 S.Ct. 1142. This limitation is "founded in concern about the proper — and properly limited — role of the courts in a democratic society." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Accordingly, this Court's jurisdiction "depends on the existence of a `case or controversy.'" GTE California, Inc. v. Federal Communications Commission, 39 F.3d 940, 945 (9th Cir.1994).
To satisfy the Constitution's standing requirement, "a plaintiff must show (1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that there injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envt'l Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ("Laidlaw"); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("DOW"); Nelson v. NASA, 530 F.3d 865, 873 (9th Cir.2008).
As the parties seeking to invoke federal jurisdiction, Plaintiffs bear the burden of demonstrating that they have standing in this action. DOW, 504 U.S. at 561, 112 S.Ct. 2130. Plaintiffs must demonstrate standing "for each claim [they] seek[] to press" and for "each form of relief sought." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (quoting Laidlaw, 528 U.S. at 185, 120 S.Ct. 693). "The plaintiff bears the burden of proof to establish standing `with the manner and degree of evidence required at the successive stages of the litigation.'" Oregon v. Legal Servs. Corp., 552 F.3d 965,
"When the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily `substantially more difficult' to establish." DOW, 504 U.S. at 562, 112 S.Ct. 2130 (quoting Warth v. Seldin, 422 U.S. 490, 505, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Plaintiffs could establish the injury in fact requirement by showing that "absent the [ARA], there is a substantial probability that they would [not be injured] and that, if the court affords the relief requested, the [injury] would be removed." Warth, 422 U.S. at 504, 95 S.Ct. 2197.
The parties agree that Plaintiffs, environmental associations, may establish standing through their members. "Even in the absence of injury to itself, an association may have standing solely as the representative of its members." Warth, 422 U.S. at 511, 95 S.Ct. 2197. To establish associational standing, each industry plaintiffs must establish the following three prongs: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).
The first prong requires Plaintiffs to establish the "irreducible constitutional minimum" requirements of injury; namely that at least one of its members:
Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). To establish associational standing, Plaintiffs must "submit affidavits ... showing, through specific facts ... that one or more of their members would ... be `directly affected' by the allegedly illegal activity." Summers, 129 S.Ct. 1142, 1151-52 (2009) (quoting DOW, 504 U.S. at 563, 112 S.Ct. 2130); see also, Rocky Mountain Farmers Union v. Goldstene, 843 F.Supp.2d 1071, 1099, 2011 WL 6934797, *22 (E.D.Cal. 2011). Plaintiffs "can demonstrate standing only if application of the regulations by the Government will affect them in the manner described above." Summers, 555 U.S. at 494, 129 S.Ct. 1142 (emphasis in original).
Plaintiffs submit a number of declarations from their members to establish standing. "While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere aesthetic interests of the plaintiff, that will suffice." Summers, 555 U.S. at 494, 129 S.Ct. 1142 (citing Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). Each of these declarants emphasizes the harm each project has caused, or is expected to cause, to his or her recreational and aesthetic interests in the forest. A summary of these declarations is presented below.
Plaintiff Sequoia Forestkeeper provides two standing declarations from Ara Marderosian ("Mr. Marderosian"), a member
Mr. Marderosian declares that he has been injured in the past by the Forest Service's failure to provide notice, opportunity to comment, and right to appeal decisions by the Forest Service to allow hazard tree logging along the Trail of 100 Giants in the Giant Sequoia National Monument, resulting in the felling and removal of many trees and thereby injuring his aesthetic interests. The Forest Service has again failed to provide notice, opportunity to comment, and right to appeal a new project proposed for the Trail of 100 Giants, one of the Forest Service projects challenged in this litigation. The Forest Service failed to mail a notice to Mr. Marderosian regarding the proposed project. Instead, after only posting a small letter to the trailhead and the ranger station for two weeks, the Forest Service issued its Decision Memorandum to exempt the project from appeal. Mr. Marderosian declares that his aesthetic interests would be injured by the trail construction and asphalt paving proposed in this grove of giant sequoias. Mr. Mardersian further declares that he intends to visit this site on November 2, 2011. Mr. Marderosian's declaration establishes his frequent visits to the sites, and its clear that he has an intention to continue these frequent visits in the future.
Mr. Marderosian also claims injury based on the Forest Service's failure to provide notice, opportunity to comment, and right to appeal two 10-year outfitter special use permits. Mr. Marderosian declares that his interests are harmed by the outfitter permits, which authorize the guiding and use of mountain bicycles through groves of giant sequoias and inventoried roadless areas, resulting in displaced soils, erosion, and intrusion into Mr. Marderosian's solitude, thereby harming his aesthetic interests, as well as his and Sequoia Forestkeeper's interests in establishing new Wilderness Areas where mountain biking is now permitted.
Another Sequoia Forestkeeper member, Carla Cloer ("Ms. Cloer") also submits a declaration regarding one of the 10-year outfitter special use permits. Ms. Cloer declares that she has suffered similar injury to her interests in one of these outfitter permits on and along trails that she has used every years since 1956. Although Ms. Cloer has been monitoring recreational trail issues for many years, especially in giant sequoia groves and inventoried roadless areas, the Forest Service failed to provide her notice of or the decision to authorize the Mountain & River Adventures 10-year permit extension, allowing the outfitter to guide mountain bicycles on several trails in giant sequoia groves and inventories roadless areas. Ms. Cloer's aesthetic and recreational injuries from mountain biking on several trails used by the permittee include displaced soils, erosion, and intrusion into solitude as she rides her horses through these trails. Ms. Cloer is also concerned that mountain biking will permanently destroy the wilderness potential for Slate Mountain Inventoried Roadless Area, damaging one of the two remaining roadless areas in the Giant Sequoia National Monuments.
Jonathan Ratner ("Mr. Ratner"), a member of plaintiff Western Watersheds Project, declares that he has been and will continue to be injured by the Forest Service's authorization of Slate Creek Corrals Range Improvement Project. Mr. Ratner declares that the project's "range improvements" harm his ability to observe wildlife by further restricting a migration route where he views and studies pronghorn and
Plaintiff Utah Environmental Congress member Kevin Mueller ("Mr. Mueller") submits a declaration related to the Skyline Tractor Salvage Project. Mr. Mueller enjoys hiking through and observing non-game wildlife that thrives in snag-rich forest, most of which would be eliminated by implementation of the project. Mr. Mueller's recreational interest in the unique, undeveloped, and removed backcountry area would also be injured by the activities proposed in Unit 2, which would allow logging in the Bear Creek Inventoried Unroaded/Undeveloped Area that Utah Environmental Congress has proposed for designation as Wilderness. Mr. Mueller and Utah Environmental Congress were not permitted to appeal the decision memorandum for the Skyline Project.
Jerry Williams ("Mr. Williams") is a member of plaintiff Ouachita Watch League. He declares that he would be injured by the prescribed burning projects proposed in the Jack Creek and Square Rock Burn Units of the Ouachita National Forest. The Forest Service's burning practices, such as those in Jack Creek and Square Rock Burns, would harm various species that Mr. Williams observes, and interferes with his use and enjoyment by causing severe habitat manipulation and damage. Mr. Williams and Ouachita Watch League were not permitted to appeal the decision memorandum for the burn projects.
Denise Boggs ("Ms. Boggs"), member of plaintiff Conservation Congress, declares that her aesthetic and recreational interests in hiking through and viewing wildlife, are injured by the Big Mountain Project, which permits logging of large trees along roads and in critical habitat for the northern spotted owl. Ms. Boggs was not permitted to appeal the decision memorandum for the Big Mountain Project.
Although the Constitutional standing inquiry involves multiple prongs, as set forth above, the parties focus only on whether the Plaintiffs have established injury-in-fact. The Summers court guides this Court to determine whether the standing declarations submitted by Plaintiffs are sufficient:
555 U.S. at 494, 129 S.Ct. 1142. Although Mr. Marderosian's affidavit sufficiently alleged injury in fact, it was insufficient to establish standing because the specific project that allegedly harmed his interests was settled. Because that project was "no longer an issue in the action," plaintiffs could not rely on Mr. Marderosian's affidavit to establish standing. Thus, but for the settling of the specific project that was alleged to have caused Mr. Marderosian's harm, Mr. Marderosian's declaration was sufficient to establish Article III standing.
The Summers discussion also makes clear what is insufficient to establish injury-in-fact. The Court found that Mr. Hensman's declaration did "not suffice for several reasons: because it was not tied to
Finally, the Summers court concluded that procedural injury alone is insufficient to establish standing to challenge the 215 Regulations. Only "a person who has been accorded a procedural right to protect his concrete interests can assert the right without meeting all the normal standards for redressibility and immediacy." 555 U.S. at 496, 129 S.Ct. 1142 (emphasis in original). The "deprivation of a procedural right without some concrete interest that is affected by the deprivation — a procedural right in vacuo — is insufficient to create Article III standing." Id.
To satisfy the injury-in-fact prong of the Constitutional standing inquiry to challenge the 215 Regulations, this Court concludes that a member of a plaintiff association must establish the following elements:(1) the alleged injury must be tied to a specific application of the challenged regulations or a specific Forest Service project; (2) that the specific Forest Service project challenge continues to be at issue in the action; (3) that the declarant visited the site of a specific Forest Service project, and (4) that the declarant's aesthetic or recreational interests would be harmed if that specific project went forward without the incorporation of the declarant's ideas that would have been suggested had the Forest Service provided him or her with the opportunity to comment or the opportunity to appeal. In addition to these four elements, a declarant who intends to establish imminent future injury must also specify when that declarant intends to return to visit the site of the specific Forest Service project.
The Forest Service argues that the Plaintiffs lack standing to raise a "facial" challenge to the 215 Regulations, because Summers limits judicial review to "as applied" challenges. The Forest Service argues that because Sections 215.4(a) and 215.12(f) do not authorize any specific projects,
The Forest Service further argues that Ruthenbeck is not controlling. The Forest Service submits that Plaintiffs erroneously argue that the Ninth Circuit's decision in Ruthenbeck is controlling. To the extent Ruthenbeck concluded that a plaintiff may establish standing by relying on procedural injury alone, that decision was overruled by Summers. In addition, because the Summers court found that the plaintiffs lacked standing, the Ruthenbeck court lacked jurisdiction to decide the merits of plaintiffs' challenges to the 215 Regulations. Accordingly, the Ruthenbeck decision was vacated to the extent that it decided the merits of the plaintiffs' claims. For these reasons, this Court agrees with the Forest Service that Ruthenbeck is not controlling.
Neither Plaintiffs nor the Forest Service give much attention to whether the standing declarations submitted by Plaintiffs satisfies Summers, beyond a general assertion that either "all" or "none" of the declarations are sufficient. Nevertheless, because this Court is of limited jurisdiction and must consider whether it has jurisdiction before proceeding to consider further arguments of the parties.
As set forth above, this Court finds that Summers requires five elements to establish injury in fact: (1) the alleged injury must be tied to a specific application of the challenged regulations or a specific Forest Service project; (2) that the specific Forest Service project challenge continues to be at issue in the action; (3) that the declarant visited the site of a specific Forest Service project, and (4) that the declarant's aesthetic or recreational interests would be harmed if that specific project went forward without the incorporation of the declarant's ideas that would have been suggested had the Forest Service provided him or her with the opportunity to comment or the opportunity to appeal.
All of the declarations submitted by Plaintiffs satisfies these four elements. Each declarant's alleged injuries are tied to a specific application of the challenged regulations. Each declarant has identified a specific site in a national forest that he or she has visited frequently and has an active interest in protecting, using and enjoying. There is no indication that any of these challenged projects has been settled or resolved. The application of the challenged regulations is identified clearly through the name and description of each Forest Service project, including its geographic location and what about the project has harmed or threatens to harm the
Next, the Court considers whether Plaintiffs' challenge to Sections 215.4(a) and 215.12(f) are ripe for judicial review. The ripeness doctrine serves "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies" and requires assessing "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (quoted in Ass'n of Am. Med. Colleges v. United States, 217 F.3d 770, 779-80 (9th Cir.2000)). "Ripeness is a prudential doctrine intended, in part, to prevent judicial review of legal issues outside the limits of Article III cases and controversies." Ruthenbeck, 490 F.3d at 694.
The Forest Service argues that the facial challenge to the 215 Regulations is unripe because there has been "insufficient development of the factual issues presented." Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). The Forest Service argues that judicial review at this point would require the parties to engage in an abstract discussion about potential applications of the 215 Regulations "without benefit of the focus of that particular logging proposal could provide." Id. The Forest Service contends that Plaintiffs will suffer no injury, and the Court will gain necessary factual context, if consideration of this matter is deferred until Plaintiffs elect to bring their challenge against an instance in which a provision of the 215 Regulations are actually applied to them in a manner that causes them injury. Thus, the Forest Service is arguing that only an "as applied" challenge would be ripe, and that a facial challenge to the regulations is not permitted unless Congress has authorized a facial challenge or the regulations impose serious penalties for violations.
The Forest Service's arguments rely heavily on legal authorities related to pre-enforcement challenges to regulations. Indeed, pre-enforcement challenged to regulations are premature if the regulations' effects are speculative and the record is incomplete. See, e.g., Toilet Goods Assoc., Inc. v. Gardner, 387 U.S. 158, 163, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). Without the development of a factual record of how the challenged regulation may be enforced, the pre-enforcement challenge would fail the first prong of the Abbott Labs. Test; namely, that it is not fit for judicial decision. Id. at 163-64, 87 S.Ct. 1520; see also, Ruthenbeck, 490 F.3d at 695. Pre-enforcement challenges may be permissible if the statute permits such a challenge, or if the penalties imposed by implementations of those regulations are serious. Absent these circumstances, however, a "regulation is not ordinarily considered the type of agency action `ripe' for judicial review under the APA" until there has been "some concrete action applying the regulation to the claimant's situation in a fashion that harms him or threatens to
As set forth in NWF, a regulation is not ripe for review unless there has been "some concrete action applying the regulation to the claimant's situation in a fashion that harms him or threatens to harm him." 497 U.S. at 891, 110 S.Ct. 3177. Plaintiffs have alleged, and supported in this motion, concrete actions in which the Forest Service has applied the challenged regulations in a fashion that has allegedly harmed or threatened to harm Plaintiffs and their members. In each of the specific Forest Service projects or permits cited in Plaintiffs' complaint, Plaintiffs specify that the Forest service failed to give them notice or an opportunity to respond to the proposed project or permit and had no opportunity to appeal the Forest Service's decision. These facts establish that the challenged regulations have been implemented against Plaintiffs in a concrete fashion and in a way that allegedly harmed them. 36 C.F.R. § 215.12(f) (categorically excluded actions not subject to appeal); 36 C.F.R. § 215.4(a) (categorical exclusions not subject to procedures for legal notice or opportunity to comment). Plaintiffs further declare that they were harmed by the implementation of these allegedly unlawful regulations. For these reasons, this Court finds that Plaintiffs challenges to Sections 215.4(a) and 215.12(f) are ripe for judicial review.
The Forest Service argues that even if Plaintiffs have standing, this action is barred by the statute of limitations. A six-year statute of limitations pursuant to 28 U.S.C. § 2401(a) applies to actions brought against the federal government pursuant to the APA. Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 930 (9th Cir.2010); Wind River Mining Corp. v. United States, 946 F.2d 710, 713 (9th Cir.1991). In an APA action, the six-year statute of limitations begins to accrue when the final agency action issues. 5 U.S.C. § 704; Crown Coat Front Co. v. United States, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967). The Forest Service points out that Sections 215.4(a) and 215.12(f) were enacted over eight years ago on June 4, 2003. Because this action was initiated more than six years after the Section 215 Regulations enacted, the Forest Service concludes that this action is time-barred.
Plaintiffs argue that this action is timely because the Pengilly/Ruthenbeck/Summers action tolled the statute of limitations under the doctrine of equitable tolling. Under the doctrine of equitable tolling, a plaintiff who seeks to bring a claim outside of the time frame may do so if "extraordinary circumstances beyond plaintiffs' control made it impossible to file the claims on time." Seattle Audubon Soc. v. Robertson, 931 F.2d 590, 595 (9th Cir. 1991). "[W]hen external forces, rather than plaintiffs lack of diligence, account
The Forest Service argues that equitable tolling does not apply to 28 U.S.C. § 2401(a), because the statute is jurisdictional in nature. For this position, the Forest Service relies on cases that do not apply 28 U.S.C. § 2401(a) or non-binding decisions outside of the Ninth Circuit. For the following reasons, this Court rejects the Forest Service's position that 28 U.S.C. § 2401(a) is jurisdictional.
In Cedars-Sinai Med. Ctr. v. Shalala, the Ninth Circuit ruled that 28 U.S.C. § 2401(a) is not jurisdictional in nature and is subject to traditional exceptions, such as equitable tolling. 125 F.3d 765, 770 (9th Cir.1997). In light of John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008), more recent Ninth Circuit opinions have questioned the continued viability of the Cedars-Sinai conclusion. See, e.g., Aloe Vera of Am. Inc. v. United States, 580 F.3d 867, 872 (9th Cir.2009). None, however, has overruled Cedars-Sinai. See, Marley v. United States, 567 F.3d 1030, 1036 n. 3 (9th Cir.2009) ("We recognized that Cedars-Sinai ... held that the six-year statute of limitations in § 2401(a) is not "jurisdictional," but instead sets up a waivable procedural bar. Section 2401(a) is not before us, so we need not decide here whether Cedars-Sinai can survive after John R. Sand & Gravel."). Without precedent to the contrary, this Court is bound to follow the binding precedent in Cedars-Sinai. Accordingly, the applicable statute of limitations may be tolled equitably.
"Generally, a litigant seeking equitable tolling bears the burden of establishing two elements (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Here, two of the current plaintiffs were pursuing their rights diligently during the time period, having filed their complaint initially within four months of the enactment of the 215 Regulations and pursuing that challenge in the district court, Ninth Circuit, and Supreme Court over a five year and ninth month period of time. The Court further finds that "extraordinary circumstances" exist in this case that caused the current plaintiffs to file their action after the statute of limitations had elapsed. In this unusual instant, the Pengilly plaintiffs were successful in their challenge of the 215 Regulations until the Supreme Court found that they lacked standing. The district court invalidated the specific regulations challenged in the instant action, among others, severed them from the other 215 Regulations, and issued a nationwide injunction against their enforcement. The Ninth Circuit affirmed the invalidity of Sections 215.4(a) and 215.12(f) and upheld the nationwide injunction prohibiting their implementation. By virtue of that litigation, Sections 215.4(a) and 215.12(f) were stricken down and unenforceable for three years and eight months during the six-year period after their initial enactment — from the time the
As an alternative, this Court finds that this action was filed timely because the applicable statute of limitations did not begin to accrue until the challenged regulations were applied to the plaintiffs. See Wind River Mining Corp., 946 F.2d 710, 714-15 (9th Cir.1991) (exception to the application of statute of limitations for claims in which a plaintiff asserts an agency acted in excess of its statutory authority). A "substantive challenge to an agency decision alleging lack of agency authority may be brought within six years of the agency's application of that decision to the specific challenger." Id. at 716. This alternative accrual to the APA statute of limitations is applicable here where Plaintiffs challenge the Section 215 Regulations by arguing that it exceeds the authority of its governing statute, the ARA. Moreover, although Plaintiffs submit a facial challenge to the regulations, Summers made clear that procedural injury is insufficient for a party to have standing. Rather, as discussed more fully above, a party only has standing if he or she has experienced a concrete injury tied to a specific implementation of the allegedly unlawful regulations.
This position in Summers regarding standing, in addition to this NWF decision regarding ripeness, supports application of the following rule of accrual in the instant action: "A cause of action against an administrative agency `first accrues' within the meaning of § 2401(a), as soon as (but not before) the person challenging the agency can institute and maintain a suit in court." Spannaus v. United States, 824 F.2d 52, 56 (D.C.Cir.1987) (citing Crown Coat Front Co. v. United States, 386 U.S. 503, 510-11, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967)); see also, Impro Prods., Inc. v. Block, 722 F.2d 845, 850 (D.C.Cir.1983), cert. denied, 469 U.S. 931, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984). Tautologically, and as the Court concluded in Summers, Plaintiffs could not maintain a suit in court at the time the 215 Regulations, because procedural injury is insufficient to establish standing. Similarly, the Plaintiffs' facial challenge to the 215 Regulations was not ripe until those regulations were implemented. Thus, Plaintiffs ability to maintain a suit commenced after the challenged regulations were implemented in such a way that allegedly caused them concrete harm. Accordingly, the statute of limitations began to accrue for each plaintiff at the time of the allegedly unlawful implementation of the challenged regulations. Because Plaintiffs have initiated this action within six years of each of the specified projects that allegedly caused their harm, this action is timely.
After this action has been filed, and while the parties were briefing their cross-summary judgment motions, the President signed into law the Consolidated
Id. (emphasis added).
In its reply,
As an initial matter, the Court notes that the Forest Service does not argue, and this Court does not find, that this action is moot in the Constitutional sense. A case is considered moot if, at some time during the litigation process, the controversy posed by the plaintiffs' complaint is no longer "live." Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). "A case becomes moot whenever it `los[es] its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.'" Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir.2001) (quoting Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969)). "This means that ... the plaintiff `must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'" Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). Thus, the basic question for determining mootness is whether "there is a present controversy as to which effective relief can be granted." Northwest Envtl. Def. Ct. v. Gordon, 849 F.2d 1241, 1244
This Court declines the Forest Service's invitation to dismiss this action as being "prudentially moot." What affect the appropriations bill will have on the ARA, and when those changes will be implemented, remains speculative. By contrast, the controversy between the parties — Sections 215.4(a) and 215.12(f) are impermissible pursuant to the ARA — continues to be live. This Court "is not required to dismiss a live controversy as moot merely because it may become moot in the future." Hunt v. Imperial Merchant Servs., 560 F.3d 1137, 1142 (9th Cir. 2009) (declining to dismiss a case that might be considered "anticipatorily moot" under doctrine of prudential mootness).
Moreover, the Appropriations Act does not change significantly the basis of Plaintiffs' claim. The Appropriations Act appears to direct the Forest Service to amend the ARA to enforce a pre-decisional objections process "in lieu of" the post-decisional appeals process as set forth in the current ARA § 322(c), (d), and (e). The Appropriations Act does not change ARA § 322(a), which directs that the Forest Service to "establish a notice and comment 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[.]" Plaintiffs contend that Sections 215.4(a) and 215.12(f) are manifestly contrary to the ARA, because although ARA § 322(a) directs the Forest Service to establish a notice and comment process "for all proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans," Sections 215.4(a) and 215.12(f) exclude from notice and comment those projects and permits that are categorically excluded under NEPA. Thus, even if ARA §§ 322(c), (d), (e) are amended pursuant to the Appropriations Act, the question presented in this action as presented remains live. Moreover, the Court is not certain that the Appropriations Act will render this question moot, because there is no indication that the challenged regulations will change to include the categorically-excluded projects and permits in the pre-decisional objections scheme that will be adopted eventually. Accordingly, this Court denies the Forest Service's motion to dismiss this action based on the notion of prudential mootness.
IT IS SO ORDERED.
