McClatchy Take on Pacific Rivers Supreme Court Case

Martins photo
Note: This post is not just an excuse to run Martin’s photo again.
Planners: I’m looking for a photo that shows a real forest plan and all its associated documentation for future posts.

Here’s a link to another story about the Supreme Court case.

Below are a couple of excerpts I found interesting:

One key question confronting the court will be whether environmentalists have the “standing” to sue against a general forest plan, as opposed to a specific project proposal, by virtue of their making recreational use of the national forests. To gain standing in federal court, individuals must show they’ve been injured or face imminent injury.

It seems to me that no one faces “imminent injury” from a forest plan other than, as planner DeAnn Zwight once remarked, by dropping one on your foot. Or potentially tripping over a pile of Appendices. Or falling asleep while reading one (very likely) and smoking…

Apparently DOJ agrees with me, below is a quote from an E&E story.. if you read past the “project htat would “threaten the forest’s ecosystem”.

Pacific Rivers Council “has not identified even one project that will adversely affect even one member,” the service wrote in court documents.

The agency also wrote the challenge was “un-ripe” for a lawsuit because it had yet to sign off on a specific project that would threaten the forest’s ecosystem.

“Absent approval of a site-specific project or other irreversible commitment of resources by the Forest Service, [Pacific Rivers Council]’s challenge to that programmatic decision is merely an abstract disagreement not appropriate for judicial review,” the agency wrote.

“The only role for a court is to insure that the agency has taken a ‘hard look’ at the environmental consequences of its proposed action,” Pacific Rivers Council’s attorneys said in a legal brief, adding that “agencies cannot take a ‘hard look’ unless they have reasonably identified the consequences of their actions.”

It was interesting in the 2001 Roadless Rule case, it appeared that very general and not very accurate environmental analysis was OK. Some have suggested that different levels apply if you are documenting a decision “not to do things” as opposed to “doing things”. I’m not sure I read that in NEPA, though. But plans, of course, don’t “do things” either. So perhaps if we looked at the 10th Circuit Roadless case and the 9th Circuit Pacific Rivers case, we would have to argue that levels of analysis can differ from decisions that “don’t allow things” to ones that “might could (plans are all about “might could”) allow some things, and not allow other things. I wonder what would happen if the same standards of analysis were applied to the 2001 Roadless Rule and to the Sierra Nevada plans? After all, that was a final decision on not allowing things, and any actions allowed by plans have to go through specific NEPA.

I was also curious about this quote:

In that 2-1 appellate court decision, the 9th Circuit panel concluded the Forest Service in 2004 failed to adequately study the effect of dramatically revised forest plans on Sierra Nevada fish populations.
“The Forest Service provided no analysis despite the fact that the 2004 (plan) allows much more logging, burning, road construction and grazing,” Judge William A. Fletcher wrote for the appellate panel.

It’s hard for me to believe that there was “no analysis”. What “Joe, I thought you were going to do the fish chapter. Oh, no, I guess we forgot? Well it’s too late, the document’s printed. I guess we’ll have to see if anyone misses it. Especially since this document is sure to be appealed and litigated.”

Anyone from familiar with this case, please shed some light.

9 thoughts on “McClatchy Take on Pacific Rivers Supreme Court Case”

  1. If you need another reason to take timberlands out of federal control, this is it. Management of the timber resource on federally owned lands is simply not possible under the existing system.

  2. Don’t forget that the courts and lawyers (and us law students) speak in “legalese” sometimes. Injury can have various meanings, and measures. Some are concrete and others are more abstract. In this context “imminent injury” generally means that a person who has been to the forest, and will go to the forest again, will be “harmed” by a loss of wildlife, or views or something. See wikipedia for a short synopsis of a fairly recent supreme court case dealing with this issue (google Lujan v. Defenders of Wildlife).
    On an aside, some might say the harm here was from a plan that didn’t include proper analysis.
    Just out of curiosity, I know folks “count” when enviro’s win in court. But have folks also counted the number of cases they they lose (like in Lujan) to figure their batting average?

  3. Thank you, CW! We really need people who understand Legal World to contribute on this blog help us understand.

    And I think many disagreements might be just people from Physical World and Legal World talking past each other.

    I totally get that loss could lead to harm. But NFMA planning, in and of itself, doesn’t cause any particular impact. It is a discussion of what “might could” happen, but each actual project has its own NEPA (CE, EA or EIS)..

    I believe that for FS cases…Gambino et al. may have some information…
    Gambino Portuese, B., R.W. Malmsheimer, A.M. Anderson, D.W Floyd, and D.M. Keele. 2009. Litigants’ characteristics and outcomes in Forest Service land management cases 1989 to 2005. Journal of Forestry 107(1):16-22.

    I think that there are other Malmsheimer papers that address the question. Here is a link to Bob’s webpage.

    But for practitioners, it’s not just about number of wins.. it’s about leaving Physical World where we live, and entering Legal World, to resolve disputes that are really about natural resources. It seems to some of us that that answers developed in Legal World, don’t do anything in Physical World. And there are varying degrees of “Science” Abuse, when judges rule on which “science” is appropriate. Finally, the decisions are ultimately made in a closed room with plaintiffs’ and USG attorneys, which tends to leave out the public.

    • It would be great to get a law school trained person to weigh in further on this idea of harm.

      For some of these cases, it would seem that the imminent harm could be new “procedural precedent” (I made that up, but it could show up on TV) that, at least arguably, might violate established procedural mandates, introduce a new interpretation of a procedural mandate, or establish the functional equivalent of a new procedural without appropriate public review. Seems that courts generally agree that arguing harm can only occur if someone drops an EIS on your toe falls short of sound. Wasn’t that the gist of the decision about the previous 2004/5 FS Planning Rule?

      Also, it would seem that a DOJ argument in an early court briefing is less helpful than actual court decisions. DOJ’s job here is to offer an early argument to the court that either Pacific Rivers Council has no standing or the court has no basis for judicial review. But, if procedural violations are a basis for judicial review under Administrative Procedures Act, with arbitrary or capricious interpretations of procedure a basis for ruling against a federal decision, then harm from “procedural precedent” would seem a viable basis for arguing standing, no? If so, then DOJ’s effort to argue otherwise may fall short.

      Regardless, it will be interesting to watch this case unfold. Seems the Supremes find the debate timely and ripe for their desks.

      • Are the attorneys who work for these environmental groups actually not “law school trained?” Are they less “law school trained” than DOJ attorneys? Are they less “law school trained” than industry attorneys?

        Seems to me, based on my experience and interactions with enviro attorneys over the years, that not only are they “law school trained” but most all the enviro attorneys I know graduated at the top of their class with honors.

        Speaking of attorneys, my younger brother is one and he’s an expert on the Foreign Corrupts Practices Act. His blog got a mention in the New York Times story today about DOJ looking into a Microsoft bribery allegation.

        • Matt, it sounds like you may have missed my point because I wasn’t dismissing anyone. I certainly didn’t intend to suggest that attorneys for environmental groups weren’t welcome to accept my clunky invitation. My point was just that I am not an attorney, nor do I play one on TV, although my made-up term will certainly show up on some TV show (clunky humor).

          What I was wondering is whether someone–anyone with legal training–might respond to the idea that harm can arise from procedural violations, as opposed to just by dropping an EIS on your toe. My sense is environmental attorneys, especially those graduating at the top of their class, might offer good insights, as might others. In no way was I dismissing anyone. I was trying to encourage a conversation about what seems an important point or debate, not shut one down.

          Sorry for any confusion I might have contributed.

  4. I doubt that PRC could find a previous project (under the amended SNF) that has adversely affected water quality and habitat. New road building and intensive logging has been all but eliminated. Old growth is protected and forests are more resilient to bark beetles and wildfires. We should be trading short term impacts for long term benefits.

  5. “Anyone familiar with this case, please shed some light.”

    “What I was wondering is whether someone–anyone with legal training–might respond to the idea that harm can arise from procedural violations, as opposed to just by dropping an EIS on your toe.”

    Ok, if anyone still cares (and wants a long answer), I’ll take the bait. I have some reservations about rejoining the policy debates with Forest Service loyalists, but the legal shoe fits, and I’ve read both the 9th Circuit opinion on Pacific Rivers Council and the petition to the Supreme Court. (I think the original ‘harm’ concept came from OGC’s Vince Dewitte in the ‘90s during the Flathead forest plan lawsuits where he suggested that plans could harm grizzly bears only if dropped on them from a helicopter.)

    There is longstanding judicial acceptance of the idea of ‘procedural harm’ and ‘procedural standing’ for laws that require agencies to follow certain processes, and courts have typically been lenient in granting standing in cases involving the NEPA process (there have been plenty of NEPA lawsuits against Forest Service plans and regulations). The basis for finding harm is that an environmental impact may be overlooked, and as long as there is a real possibility that the agency would have reached a different decision to avoid that impact if it had complied with the requirements of NEPA, standing should be granted.

    The current Pacific Rivers case involves issues of ripeness and standing that both involve questions of ‘harm:’ ‘is there harm’ in the former, and ‘is anyone affected by that harm’ in the latter. The government’s ripeness arguments build on the Supreme Court’s decision in Ohio Forestry Ass’n v. Sierra Club (1998), which held that forest plan decisions related to below-cost timber sales and timber suitability are not reviewable against NFMA requirements because they could not cause legal or practical harm until further agency action (timber sales) occurred. Since then, NFMA issues have usually required a pending project in order to litigate them.

    The issue in PRC is whether forest plan decisions are ripe for review under NEPA. The Ohio Forestry Court had distinguished NEPA procedural requirements from the NFMA substantive requirements, stating that a person, “who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place for the claim can never get any riper.” The government is now arguing in PRC that any problems with the analysis of the plan’s environmental effects may still be addressed before a project is planned, or at least will be ‘riper’ when a project is litigated.

    The CEQ NEPA regulations don’t appear to support this position. If a programmatic EIS is required by NEPA, it is because some potential harm is recognized as reasonably foreseeable that must be considered at a programmatic level, and claims related to that harm can not get any riper. Looking at project effects, even cumulative effects, is not the same as looking at the effects of a forest plan in its entirety. (Congress did foresee application of NEPA to forest plans in Section 6(g)(1) of NFMA.)

    The government is also arguing that there needs to be an irreversible commitment of resources to trigger reviewability under NEPA. NEPA (the statute) recognizes that there may be irreversible and irretrievable commitments of resources, but does not establish that as a prerequisite for an EIS. The CEQ regulations governing programmatic NEPA are rather ambiguous, but they do not say this either, and when read as a whole indicate otherwise. If (as the article says) …
    “The 2004 Bush plan called for harvesting 4.9 billion more board-feet of timber than under the 2001 Clinton plan. The Bush plan also called for constructing 90 more miles of new roads, reconstruction of 855 more miles of existing roads and a loosening of restrictions on grazing”
    … why would the effects of those actions NOT be ‘reasonably foreseeable’ for the purpose of NEPA? (The merits of the case concern impacts on fisheries that were reasonably foreseeable for the 2001 amendment, but were not addressed by the 2004 amendment.)

    If the Forest Service wins this argument, it will have gotten much of what it wanted from the 2005 planning rule, by making NEPA for forest plans difficult to challenge and potentially optional. If forest plans are not reviewable, then the standing question becomes irrelevant. On the other hand, if plans are reviewable, then shouldn’t someone have standing to review them?

    The standing issue revolves around whether the potential harm to the environment would affect a particular plaintiff, and tends to focus on how well that individual has made the case for their exposure to the harm. In public lands cases this has meant demonstrating the likelihood of an individual using an area and the likelihood that area would be affected. In PRC the Forest Service is trying to raise the bar on standing requirements by extending the 2009 Supreme Court decision in Summers v. Earth Island Institute to forest plans.

    Summers (a 5-4 opinion) involved national regulations rather than a forest plan (and a complicating factor that a specific project that was the original basis for plaintiff’s standing justification was no longer part of the case). It found no standing where the plaintiff had failed to allege that any particular timber sale or other project subject to the regulations would affect its interests. The petition to the Supreme Court in PRC claims that plaintiff ‘did not challenge or even identify a single project,’ and cites ‘the Court’s admonition’ in Summers as follows:
    …a ‘statistical probability’ or supposedly ‘realistic threat’ that a plaintiff’s members would be harmed in the ‘reasonably near future’ cannot establish standing.’

    Applying the Summers reasoning to PRC raises the question of whether it is possible to sufficiently describe what area will be affected (to use as a basis for standing) unless you have identified a specific project proposal. If the Forest Service wins this argument, it is hard to see how anyone could ever have standing to independently challenge any agency’s programmatic NEPA analysis. (This really becomes a challenge to the concept of mandatory programmatic NEPA, and I wonder if CEQ is paying attention.)

    Summers also cited a prior Supreme Court decision that held that:
    “… to establish standing plaintiffs must show that they ‘use the area affected by the challenged activity and not an area roughly in the vicinity of” a project site Lujan v. Defenders of Wildlife” (1992) (Lujan also involved a federal regulation, but was referring here to a case about a mining project).
    For forest plans, the ‘area affected by the challenged activity’ is a national forest, and following this logic from Lujan, use of any part of the national forest should be sufficient to confer standing to challenge a plan decision. Supreme Court precedents thus appear to offer a choice of treating standing for forest plans similar to regulations or projects.

    A win by the Forest Service means that problems with the forest plan will be brought up later, and maybe multiple times. Maybe someone can tell me why, from an agency perspective, it is a good idea to wait for project litigation to find out that a plan is flawed (and that resources have been wasted on many other projects that assumed it was valid). I think the main problem the Forest Service sees with the litigation that results from programmatic NEPA is the remedy: with a reversal of a programmatic decision you can sometimes enjoin a lot of future projects. But wouldn’t invalidation of the plan’s environmental analysis put the agency in the same place with regard to other projects regardless of how the issue got to court?

    • Jon, thanks for this thoughtful contribution, although reading it made my head hurt…I appreciate your sharing your expertise.


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