The United States Forest Service (USFS) appealed a district court decision in favor of Earth Island Institute, Sequoia Forestkeeper, Heartwood, Inc., Center for Biological Diversity, and the Sierra Club (collectively Earth Island), which enjoined five of the USFS's regulations on the ground that the regulations were contrary to the Forest Service Decisionmaking and Appeals Reform Act (ARA).[1] Earth Island also cross-appealed and renewed its challenges against four regulations that the district court had found valid. The Ninth Circuit partially affirmed the district court and held that Earth Island had standing to challenge all nine regulations, but the Ninth Circuit partially reversed the district court on ripeness grounds, holding that only one of Earth Island's claims presented a ripe controversy. As for the one ripe challenge, the Ninth Circuit affirmed the district court's invalidation and injunction of the challenged regulation, holding that it was contrary to the ARA.

The nine regulations at issue concerned USFS's procedures for notice, comment, and appeal of proposed forest management actions. Prior to 1992, USFS provided a "post-decision administrative appeals process"[2] for certain agency decisions, but USFS proposed a regulation in 1992 that eliminated such appeals and created a categorical exclusion from notice, comment and appeal for certain projects. Specifically, the exclusion applied to a project if the USFS had completed an Environmental Assessment (EA) under the National Environmental Policy Act (NEPA)[3] and found that the project would not result in a significant environmental impact. The 1992 proposed regulation met considerable objection, and Congress responded by enacting the ARA. The ARA required USFS, among other things, to "establish a notice and comment process"[4] for certain projects and to "modify the procedure for appeals of decisions concerning such projects."[5] The USFS proposed regulations implementing the ARA but, when these continued to meet with protest, USFS reinstated the pre-1992 notice, comment, and appeals process as an interim measure until it could issue regulations implementing the ARA.

On June 4, 2003, USFS published a final rule (2003 Rule), which contained the nine regulations at issue and revised the notice, comment and appeals process for projects implementing management plans for National Forests.[6] Specifically, one of the regulations in the 2003 Rule (section 12(f)), provided that "[d]ecisions for actions that have been categorically excluded from documentation"[7] in an EA or Environmental Impact Statement (EIS) are not subject to appeal. After publishing the 2003 Rule, USFS created and published two new categories of projects--fire rehabilitation projects on less than 4,200 acres[8] and salvage timber sales of 250 acres or less. [9] USFS excluded these new categories of projects from EA and EIS analysis, and thus also excluded decisions for these projects from appeal under section 12(f).

On September 8, 2003, USFS issued a decision memo, approving a timber sale and treatment of 238 acres in the Sequoia National Forest called the Burnt Ridge Project (the Project). The memo stated that the Project was categorically excluded from documentation in an EA or EIS, because the project was a salvage timber sale of 250 acres or less. The decision memo also stated that, as a categorical exclusion, section 12(f) applied, and the Project was not subject to appeal. Earth Island challenged the Project, the parties eventually settled, and USFS withdrew the Project.

On December 1, 2003 Earth Island filed suit against USFS, bringing facial challenges to nine regulations in the 2003 Rule and challenging the 2003 Rule as applied to the Project. The district court upheld four of the regulations in the 2003 Rule and invalidated five others, ordering a nationwide injunction to prevent their application. USFS appealed the invalidation and injunction of the five regulations, and Earth Island cross-appealed the court's decision to uphold the other four regulations.

The Ninth Circuit first addressed the district court's finding that Earth Island had standing to challenge the regulations. To establish standing, Earth Island relied on the affidavit of Jim Bensman, an employee and member of one of the plaintiff organizations. Bensman claimed that he had been using National Forests for over twenty-five years and specifically planned to return to certain forests in the near future. He also claimed personal, aesthetic and procedural injuries, stating that, "if an appeal option were available to him on projects that are categorically excluded from appeal, he would exercise that right of appeal."[10] Earth Island argued that it had standing, based on Bensman's affidavit,[11] because the regulations harmed both personal aesthetic interests as well as the procedural interest of participating in an appeal process. USFS, on the other hand, argued that Earth Island had not suffered a "cognizable injury in fact with respect to the challenged regulations, because the regulations [had] not yet been applied."[12] To establish standing, a plaintiff must suffer from an actual injury, caused by defendant's conduct, and which a favorable decision can redress.[13] While aesthetic interests may be injuries in fact, the plaintiff must actually be among the injured;[14] future intentions to return to an area do not establish an actual or imminent injury, "unless the [plaintiff] has specific plans to return to the area."[15] Procedural injuries can establish standing,[16] but injury must be within the "zone of interest"[17] that Congress intended a statute to protect.

The Ninth Circuit affirmed the district court's determination that Earth Island had standing to challenge USFS's regulations, explaining that Earth Island had suffered both aesthetic and procedural injuries. The court stated that "Bensman's preclusion from participation in the appeals process may yield diminished recreational enjoyment,"[18] and the court held that Bensman's procedural injury, being unable to appeal the Project, was within the zone of interests that Congress intended to protect in enacting the ARA, a procedural statute. The court also concluded that the injuries were fairly traceable to the regulations and that invalidating the regulations would redress the injuries.

The Ninth Circuit next addressed the district court's finding that Earth Island's claims were ripe for review. USFS argued that the challenges to the regulations were not ripe for review because the regulations had not yet been applied. Earth Island countered that the claims were ripe for review regardless of whether USFS had yet applied them, because the regulations constituted final agency actions and presented purely legal questions.

Abbot Laboratories v. Gardner[19] established a two-fold test for determining whether a pre-enforcement challenge of a regulation is ripe, requiring the court "to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration."[20] Abbot Laboratories also established a presumption favoring ripeness for challenges to regulations that constitute final agency actions and that present purely legal questions.[21] However, in Toilet Goods Association, Inc. v. Gardner¸[22] the Court held that if the regulations' effects are speculative and the record is incomplete, the claim is not ripe.[23] The Court further explained the ripeness doctrine in National Park Hospitality Association v. Department, [24] stating that a claim is also not ripe if "further factual development would 'significantly advance [the court's] ability to deal with the legal issues presented.'"[25]

The Ninth Circuit held that Earth Island had only established that its claim under section 12(f) was ripe. The court explained that, because USFS had not yet applied any of the other regulations to the Project or any other projects, Earth Island's challenges to those other regulations were speculative. Although the challenges concerned final agency actions and presented purely legal questions, the court held that further factual development of the record would help the court review the matter. The court also held that the fact Earth Island and USFS had settled the dispute over the Project did not affect the ripeness of Earth Island's subsequent facial challenge to section 12(f).

Having found that only Earth Island's challenge to section 12(f) was ripe for review, the Ninth Circuit next addressed the district court's invalidation of that section as contrary to the ARA. USFS argued that the ARA contains ambiguous language and the regulation was simply a reasonable interpretation of that language. Earth Island, on the other hand, argued that the ARA is unambiguous, and its plain language requires an administrative appeals process. Earth Island alternatively argued that section 12(f) was invalid as contrary to the legislative history of the ARA.

To determine whether section 12(f) was valid under the ARA, the Ninth Circuit looked to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron).[26] Under Chevron, a court must defer to an agency's regulation it is a reasonable interpretation of an ambiguous statute.[27] The Ninth Circuit held that section 12(f) was invalid, because the ARA was unambiguous and section 12(f) was contrary to that statute's plain language. The court explained that the ARA states that the USFS "shall" provide opportunities for notice, comment, and appeal, and therefore the language does not permit the exclusion contained in section 12(f). The court also noted that, even if the ARA were ambiguous, section 12(f) would still be invalid under Chevron as an unreasonable interpretation of the statute in light of the ARA's legislative history, which showed that Congress passed the ARA to ensure the continuance of the administrative appeals process, after an attempt to eliminate such appeals.

The Ninth Circuit further held that the district court's decision to apply the injunction nationwide was not an abuse of discretion, thereby affirming the district court's denial of USFS's motion to limit the geographic scope of the injunction. The Ninth Circuit explained that the Administrative Procedures Act[28] compels complete invalidation of a regulation that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."[29]

In sum, the Ninth Circuit affirmed the district court's finding that Earth Island had standing to challenge all nine regulations based on personal and procedural injuries. The Ninth Circuit partially remanded, however, on the issue of ripeness, holding that eight of Earth Island's nine claims challenging regulations were not ripe. The court affirmed that the ninth regulation was invalid because it was contrary to its governing statute and that a nationwide injunction was an appropriate remedy. The Ninth Circuit remanded with respect to the remaining regulations for the district court to vacate its judgment for lack of a ripe controversy.