SOS Forests

Supremes Limit Standing to Sue USFS

In a 5-4 ruling Tuesday, the Supreme Court ruled that enviros who sue the US Forest Service must show that their members will be directly harmed in a concrete way by specific USFS actions.

Vague claims that blanket the nation will no longer be adequate for establishing standing to sue.

Some Background

The case at issue, Summers v. Earth Island Institute, arose when five enviro groups (the Earth Island Institute, Sierra Club, Sequoia ForestKeepers, Heartwood, Inc., and Center for Biological Diversity) sued the USFS to enjoin the Burnt Ridge Project.

The Burnt Ridge Project timber sale was proposed in September of 2003. It was to be a 238 acre rehabilitation treatment within the 150,700 acre McNally Fire (2002) on the Hot Springs Ranger District of Sequoia National Forest. This amounted to 0.16 percent of the burned area. But heaven forfend, the sky would have fallen if so much as one acre of the catastrophe had been treated, and so the “watchdog” groups slammed the USFS with a lawsuit to stop it.

The USFS had promulgated a rule, entirely consistent with NEPA, that microscopic projects like the Burnt Ridge Project could be categorically excluded from Environmental Impact Statement (“EIS”) analysis.

The five enviro groups claimed they had standing to sue because some joker from Indiana (Heartwood, Inc. is based in Indiana) avowed that he might drive or fly to California some day and might possibly hike out to the project area and view it, and that the very sight of a rehab project would ruin his recreational experience. From the Ninth Circuit Court decision of 2006 [here].

To establish their standing, plaintiffs rely on the declaration of Jim Bensman, an employee and member of Heartwood. According to his affidavit, Bensman has been using the National Forests for over 25 years, and has visited National Forests in California, including Klamath, Shasta, Six Rivers and Trinity. Bensman declared that he planned to return to California in August 2004 and Oregon in October 2004. He asserted that his interest in the biological health of the forest, as well as his recreational interest, is harmed when development occurs in violation of law or policy. Bensman specifically stated that if an appeal option were available to him on projects that are categorically excluded from appeal, he would exercise that right of appeal. He also alleged personal and procedural injuries under each challenged regulation.

Judge James K. Singleton of the US District Court of Eastern California bought that malarkey, and in 2005 enjoined the Burnt Ridge Project and every other micro-project in the nation, even though the Burnt Ridge Project was the only project specifically referenced in the complaint.

Subsequently the USFS negotiated with the Earth Island Institute and agreed to settle the Burnt Ridge Timber Sale dispute out of court. The Forest Service agreed that it would not reissue the Burnt Ridge Project without first preparing an Environmental Impact Statement or Environmental Assessment for the project.

The Burnt Ridge Project never took place. A total of 2,168 acres within the McNally Burn received some tree planting. That’s it.

The Supremes

The lawsuit went on regardless. Judge Singleton’s nationwide blanket injunction halted all manner of projects from fuel management thinnings under the Healthy Forests Restoration Act to mowing the lawn at District Ranger offices. Harvest of the National Christmas Tree from USFS lands was canceled.

The Ninth Circuit Court upheld the nationwide injunction. No surprise there! The Ninth Circuit yearns for catastrophic immolation of America. It’s the Commie Way.

But the Supreme Court slapped the Ninth Court in the kisser Tuesday. In an opinion written by Justice Antonin Scalia and endorsed by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas, the Supremes said wait a minute. There has to be some sort of specific concrete harm that might potentially injure a real person before standing can be granted. Scalia wrote [here]:

We know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action (here, the regulation in the abstract), apart from any concrete application that threatens imminent harm to his interests. Such a holding would fly in the face of Article III’s injury-in-fact requirement.

Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members. The only other affidavit relied on was that of Jim Bensman. He asserted, first, that he had suffered injury in the past from development on Forest Service land. That does not suffice for several reasons: because it was not tied to application of the challenged regulations, because it does not identify any particular site, and because it relates to past injury rather than imminent future injury that is sought to been joined.

Bensman’s affidavit further asserts that he has visited many National Forests and plans to visit several unnamed National Forests in the future. Respondents describe this as a mere failure to “provide the name of each timber sale that affected [Bensman’s] interests,” Brief for Respondents 44. It is much more (or much less) than that. It is a failure 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 Bensman’s to enjoy the National Forests.

The National Forests occupy more than 190 million acres, an area larger than Texas. See Meet the Forest Service, http://www.fs.fed.us/aboutus/meetfs.shtml (as visited Feb. 27, 2009, and available in Clerk of Court’s case file). There may be a chance, but is hardly a likelihood, that Bensman’s wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations. Indeed, without further specification it is impossible to tell which projects are (in respondents’ view) unlawfully subject to the regulations. …

Here we are asked to assume not only that Bensman will stumble across a project tract unlawfully subject to the regulations, but also that the tract is about to be developed by the Forest Service in a way that harms his recreational interests, and that he would have commented on the project but for the regulation. Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact.

I find Scalia’s opinion to be rather amusing, but maybe that’s just me. Poor Bensman. The Supreme Court just made fun of him. Scalia’s opinion will go down in history, too. Bensman will be famous for centuries as a proponent of wild assertions. When confronted by some outrageous and impossible claim, people will say, “Sorry, that’s a Bensman.”

Justice Stephen Breyer wrote a dissent [also here] and was joined by Justices Ruth Bader Ginsburg, David Souter and John Paul Stevens. Breyer contended that any “conjectural” or “hypothetical” or otherwise speculative harm that may possibly happen to a plaintiff is sufficient to grant standing. For example, global warming!!!! Breyer wrote:

To the contrary, a threat of future harm may be realistic even where the plaintiff cannot specify precise times, dates, and GPS coordinates. Thus, we recently held that Massachusetts has standing to complain of a procedural failing, namely, EPA’s failure properly to determine whether to restrict carbon dioxide emissions, even though that failing would create Massachusetts-based harm which (though likely to occur) might not occur for several decades. EPA, 549 U. S., at 522–523.

Judge Breyer leaped off the cliff on that one. CO2 is NOT a pollutant, it is the essential nutrient of life. Restricting CO2 emissions will create vast harms to the planet as well as to social and economic well-being, exactly contrary to Breyer’s assertion.

Breyer is a lunatic, sad to say. He believes that any cockamamie Chicken Little sky-is-falling bizarro claim, no matter how counter-factual and absurd, is sufficient to grant standing to a would be plaintiff in a Federal Court.

Fortunately he was a loser with that argument, for now. There is no telling what kind of nutcases the crazies in charge of the Executive and Legislative Branches will appoint to the Supremes in the coming years.

Meanwhile, our public forests continue to burn in catastrophic megafires to the tune of millions of acres a year, much to the delight of enviro groups and lunatic judges.

Maybe some day Judge Breyer will come out west and tour one of our wasteland moonscape former forests and consider what harms and injuries have occurred, and whether rehabilitation of the destroyed watersheds might be a GOOD idea or not. Seeing is believing, or so they say, and might be a cure for judicial blindness.