FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE WILDERNESS SOCIETY, INC.;
AMERICAN WILDLANDS; PACIFIC
RIVERS COUNCIL,
No. 06-35565
Plaintiffs-Appellees,
v. D.C. No.
CV-03-00119-DWM
MARK REY; ANN VENEMAN; DALE
OPINION
BOSWORTH, Chief, United States
Forest Service,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
June 9, 2010—Portland, Oregon
Filed September 22, 2010
Before: Cynthia Holcomb Hall, David R. Thompson, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
16095
WILDERNESS SOCIETY v. REY 16099
COUNSEL
John C. Cruden, Acting Assistant Attorney General, Washing-
ton, D.C., for the appellants.
Leslie Lagomarcino, U.S. Department of Agriculture Office
of General Counsel, Washington, DC, for the appellants.
David C. Shilton, Barclay T. Samford (argued), and Katherine
W. Hazard, U.S. Dept. of Justice, Washington, D.C., for the
appellants.
Timothy J. Preso (argued), Bozeman, Montana, for the appel-
lees.
OPINION
McKEOWN, Circuit Judge:
The Forest Service Decisionmaking and Appeals Reform
Act (“ARA”), requires the Secretary of Agriculture to estab-
lish notice and comment procedures through the Chief of the
United States Forest Service for proposed decisions related to
“projects and activities implementing land and resource man-
agement plans.” Pub. L. No. 102-381, § 322, 106 Stat. 1419
(1992) (codified as 16 U.S.C. § 1612 note). The Act also
requires the Secretary to modify the appeals procedure for
decisions concerning these projects. Id. In 2003, the Forest
Service revised the regulations implementing the ARA to sig-
nificantly limit the scope and availability of notice, comment,
and appeals procedures. In response, several environmental
groups, The Wilderness Society, American Wildlands, and
Pacific Rivers Council (together “TWS”), asserted facial chal-
lenges against three sections of the revised regulations, alleg-
ing that they are inconsistent with the ARA. The district court
agreed and granted TWS declaratory and injunctive relief.
16100 WILDERNESS SOCIETY v. REY
Given intervening case law, we dismiss TWS’s claims as non-
justiciable.
BACKGROUND
The National Forest Management Act of 1976 directs the
Forest Service to develop “land and resource management
plans for units of the National Forest System.” 16 U.S.C.
§ 1604(a). Before 1992, although it was not statutorily
required, the Forest Service provided a post-decisional
appeals process for certain decisions related to these plans.
Ultimately, the Forest Service discontinued the process
because it was too costly to maintain. In 1992, partly as a
result of negative public reaction to the cancellation, Congress
enacted the ARA. The Forest Service then adopted regula-
tions implementing the legislation.
In 2003, the Forest Service issued revised regulations. One
month later, TWS challenged three sections of the revised
regulations claiming that the provisions impermissibly limit
the scope of notice, comment, and appeals. Because the ARA
mandates the unqualified application of notice, comment, and
appeals procedures to “projects and activities implementing
land and resource management plans,” ARA § 322(a), TWS
contends that the regulations are at odds with the statute.
Section 215.20(b) of the regulations exempts decisions of
the Secretary and Under Secretary (together “the Secretary”)
from notice, comment, and appeals requirements:
Decisions of the Secretary of Agriculture or Under
Secretary, Natural Resources and Environment are
not subject to the notice, comment, and appeal pro-
cedures set forth in this part. A decision by the Sec-
retary or Under Secretary constitutes the final
administrative determination of the Department of
Agriculture.
WILDERNESS SOCIETY v. REY 16101
36 C.F.R. § 215.20(b).
Section 215.13(a) limits the right of appeal to those who
have submitted substantive comments:
Individuals and organizations who submit substan-
tive written or oral comments during the 30-day
comment period for an environmental assessment, or
45-day comment period for a draft environmental
impact statement (§ 215.6, 40 CFR 1506.10; FSH
1909.15, Chapter 20), except as provided for in para-
graph (c) of this section, may file an appeal.
36 C.F.R. § 215.13(a).
Finally, § 215.12(f) exempts from appeal those projects that
the Forest Service finds not to have a significant effect on the
environment and that are thus categorically excluded from
certain National Environment Policy Act (“NEPA”) require-
ments:
The following decisions and actions are not subject
to appeal under this part . . . : (f) Decisions for
actions that have been categorically excluded from
documentation in an [environmental assessment] or
[environmental impact statement] pursuant to FSH
1909.15, Chapter 30, section 31.
36 C.F.R. § 215.12(f).
In 2006, the district court declared all three of these regula-
tory provisions invalid. However, because TWS had not
alleged a waiver of sovereign immunity in its complaint, the
district court concluded it could not impose a remedy. The
court allowed TWS time to amend its complaint.
In an unrelated action—while this case was proceeding in
the district court in Montana—a district judge in the Eastern
16102 WILDERNESS SOCIETY v. REY
District of California granted nationwide injunctive relief with
respect to §§ 215.20(b) and 215.12(f) of the 2003 regulations.
Earth Island Inst. v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal.
2005). In view of this decision, TWS amended its complaint
to request merely declaratory relief with respect to those two
regulations. The claim for a nationwide injunction with
respect to § 215.13(a) remained unchanged. TWS also
amended its complaint to allege a waiver of sovereign immu-
nity under the Administrative Procedure Act.
The district court granted TWS’s motion for summary
judgment and declared §§ 215.20(b) and 215.12(f) invalid. It
imposed a nationwide injunction prohibiting the Forest Ser-
vice from acting under § 215.13(a).
ANALYSIS
On appeal, the Forest Service argues that intervening Ninth
Circuit and Supreme Court case law, stemming from Pengilly,
renders the case non-justiciable. We consider de novo the
question of standing. See Nevada Land Action Ass’n v. United
States Forest Serv., 8 F.3d 713, 715 (9th Cir. 1993).
I. INTERVENING CASE LAW
In Earth Island Institute v. Ruthenbeck, the Forest Service
challenged the district court’s ruling in Pengilly on both
standing and ripeness grounds. 490 F.3d 687 (9th Cir. 2007).
We held that while plaintiffs had standing to pursue their
claims, only two of the provisions, 36 C.F.R. §§ 215.4(a) and
215.12(f), were ripe for review. Earth Island specifically men-
tioned only one project in its complaint, and only the latter
two provisions were applicable in the context of that project.
Ruthenbeck, 490 F.3d at 696.
[1] The Supreme Court did not reach the ripeness question.
Instead, it held that none of Earth Island’s claims were justi-
ciable because plaintiffs lacked standing:
WILDERNESS SOCIETY v. REY 16103
To seek injunctive relief, a plaintiff must show that
he is under threat of suffering “injury in fact” that is
concrete and particularized; 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.
Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149
(2009) (citation omitted). The Court reiterated that where the
regulations being challenged do not require or forbid any
action on the part of the respondents, standing is substantially
more difficult to establish. Id. Earth Island lacked standing to
challenge §§ 215.4(a) and 215.12(f), because it failed to iden-
tify an “application of the invalidated regulation that threa-
ten[ed] imminent and concrete harm to the interests of [its]
members.” Id. at 1150.
[2] The Court elaborated that neither the vague desire to
use the forest land in the future, nor the procedural harm, “in
vacuo,” of being denied the right to comment on Forest Ser-
vice actions, was sufficient to confer Article III standing. Id.
at 1150-51. As the Court explained, “ ‘[s]uch ‘some day’
intentions—without any description of concrete plans, or
indeed any specification of when the some day will be’ ”—do
not support standing. Id. at 1151 (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 564 (1992)). Earth Island’s claim
of standing was insufficient because it was “not tied to appli-
cation of the challenged regulations, because it [did] not iden-
tify any particular site, and because it relate[d] to past injury
rather than imminent future injury that is sought to be
enjoined.” Id. at 1150.
II. STANDING
The district court rejected the Forest Service’s challenge to
TWS’s standing, reasoning that “[b]ecause the ARA’s pur-
pose is to establish notice and comment and appeals proce-
16104 WILDERNESS SOCIETY v. REY
dures, deprivation of the procedures injures the Plaintiffs in a
sense contemplated by Congress.” In addition to this proce-
dural injury, the district court found that TWS had standing
because it suffered an “informational injury” in being denied
notice of Forest Service actions. The nature of the informa-
tional injury, according to the court, was that TWS “would
not know that action [wa]s being considered until it [wa]s too
late and irreversible action as [sic] already been taken.”
On appeal, the Forest Service renews its challenge to
TWS’s standing.1 It argues that Summers undermines TWS’s
alleged procedural injury given the Court’s holding that “de-
privation 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.” Sum-
mers, 129 S. Ct. at 1151. The Forest Service also argues that
because it does not challenge the district court’s ruling on the
notice and comment portions of § 215.20(b), any informa-
tional injury previously suffered has been remedied.
Recognizing the hurdle posed by Summers, TWS now
argues that it has standing with respect to § 215.12(f) because
that challenge is specifically tied to a location and to a partic-
ular project, and because one of its members suffered an aes-
thetic or recreational injury-in-fact. Although its challenges to
§§ 215.20(b) and 215.13(a) are not tied to a particular project
or application, TWS contends that Summers is not controlling
with respect to its claim of “informational injury,” because the
Court did not address that issue in its decision.
TWS also broadens its alleged injury to include not simply
the informational deprivation caused by the loss of notice and
comment, but also the informational deprivation resulting
from its inability to participate in the “appeal-and-decision
1
Although TWS is the appellee in this case, it nonetheless bears the bur-
den of establishing standing for each type of relief sought. See Summers,
129 S. Ct. at 1149.
WILDERNESS SOCIETY v. REY 16105
process.” If an informational injury of this sort is indeed cog-
nizable, TWS would defeat the Forest Service’s standing
challenge with respect to all three regulations. We address the
standing arguments in turn.
A. AESTHETIC AND RECREATIONAL INJURY-IN-FACT
In response to the Forest Service’s renewed standing chal-
lenge, TWS now asserts that it has associational standing to
challenge § 215.12(f) by virtue of member Michael Ander-
son’s recreational and aesthetic injuries. This argument stems
from the Supreme Court’s discussion of standing in Friends
of the Earth, Inc. v. Laidlaw Environmental Services (TOC),
Inc.:
An association has standing to bring suit on behalf
of its members when its members would otherwise
have standing to sue in their own right, the interests
at stake are germane to the organization’s purpose,
and neither the claim asserted nor the relief
requested requires the participation of individual
members in the lawsuit.
528 U.S. 167, 181 (2000).
Anderson submitted a declaration in June 2004 stating that
he had extensively used Oregon’s Umpqua National Forest in
the past. Later in the declaration he testified that the Ash
Creek Fire Salvage Project (“Ash Creek Project”) in the Ump-
qua Forest injured TWS’s interest in “protecting and restoring
the ecological integrity of national forest lands.” Anderson
went on to note that under the prior regulations, the project
would have been subject to appeal and TWS would have had
the opportunity to lessen or eliminate this injury.
[3] TWS is correct that Summers did not eliminate the
notion of aesthetic and recreational injury. Summers, 129 S.
Ct. at 1149. To sustain standing on this basis, it would be suf-
16106 WILDERNESS SOCIETY v. REY
ficient to show that Anderson had repeatedly visited an area
affected by a project, that he had concrete plans to do so
again, and that his recreational or aesthetic interests would be
harmed if the project went forward without his having the
opportunity to appeal. Id. Where the recreational use of a par-
ticular area has been extensive and in close proximity to the
plaintiff, we have held that an affiant’s expressed intention to
continue using the land is sufficiently concrete to underwrite
an injury-in-fact. See White Tanks Concerned Citizens, Inc. v.
Strock, 563 F.3d 1033, 1039 (9th Cir. 2009). Nonetheless, a
vague desire to return to the area “without any description of
concrete plans, or indeed any specification of when the some
day will be” does not support a finding of actual or imminent
injury. Summers, 129 S. Ct. at 1151.
[4] Anderson demonstrates extensive past use of the Ump-
qua National Forest. Although he does not offer any testi-
mony as to when he might return, we do not discount the fact
that he authored a hiking book about the area and says he
wants to continue going there with his family in the future. On
the other hand, Anderson authored the hiking book more than
thirty years ago, and he expresses his general intention to
return not just to the Umpqua National Forest but to several
national forests in both Oregon and Washington state. This
“some day” general intention to return to the national forests
of two geographically large states is too vague to confer
standing because Anderson has not shown that he is likely to
encounter an affected area of the Umpqua National Forest in
his future visits. See Defenders of Wildlife, 504 U.S. at 565.
[5] Relatedly, the Court in Summers explained that to find
standing based on an affidavit, a court must assume not only
that the affiant would use a particular tract of land in the
future, “but also that the tract is about to be developed by the
Forest Service in a way that harms [plaintiff ’s] recreational
interests.” Summers, 129 S. Ct. at 1150. Past injury is not suf-
ficient to confer standing. Id. There must be an “imminent
future injury that is sought to be enjoined.” Id.
WILDERNESS SOCIETY v. REY 16107
[6] While it is true that Anderson alleges an injury con-
nected to a particular project located in the Umpqua National
Forest (the Ash Creek Project), the alleged injury from the
Ash Creek Project is not connected to Anderson’s recreational
or aesthetic interest in enjoying that particular forest in the
future. Anderson does not allege that his future enjoyment is
in any way threatened by the Ash Creek Project. He testified,
rather, that TWS’s interest in protecting and restoring the eco-
logical integrity of national forest lands, generally, is threat-
ened by the project. There is no indication that the Ash Creek
Project would affect the particular area of the Umpqua Forest
that Anderson plans to use in the future, or that it would oth-
erwise impact his personal recreational or aesthetic interests
in the land. The lack of any linkage between the project and
the claimed injury undermines the effort to establish standing.
Compounding the problem is the matter of timing. TWS
filed its complaint in July 2003. The Ash Creek Project was
not approved until July 2004. At the time the complaint was
filed, § 215.12(f) had no relevance to the project because the
Forest Service had classified it as not falling under the NEPA
categorical exclusion. Thus, pursuant to NEPA, a Notice of
Intent for an Environmental Impact Statement was posted in
March 2003, and public meetings were held as late as July 24,
2003. It was not until November 19, 2003 that interested par-
ties were informed that the project would fall into a categori-
cal exclusion under NEPA, thus exempting it from the appeals
process under § 215.12(f). “The existence of federal jurisdic-
tion ordinarily depends on the facts as they exist when the
complaint is filed.” Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 830 (1989). In July 2003, the record facts about
the Ash Creek Project could not confer standing on TWS.
[7] We conclude that Anderson’s passing reference to the
Ash Creek Project is not central to TWS’s claim. It was not
relevant to § 215.12(f) at the time the complaint was filed and
it did not represent a future, imminent harm sought to be
enjoined. Even if Anderson’s intention to return to Umpqua
16108 WILDERNESS SOCIETY v. REY
National Forest was sufficiently specific, which we doubt, he
did not allege that the Ash Creek Project itself, or its results,
affected or would affect his aesthetic or recreational interests
in the land he intended to use in the future. In short, as in
Summers, the declaration is deficient and insufficient to sup-
port standing.2
B. INFORMATIONAL INJURY
In its standing analysis, the district court confirmed both
procedural and informational injury. Although it acknowl-
edged that procedural injury is “sufficient for standing only in
limited circumstances,” the court held that in this case,
because the ARA created the specific right to notice, com-
ment, and appeals procedures, “deprivation of th[ose] proce-
dures injur[ed TWS] in a sense contemplated by Congress.”
The court explained further that the injury in question was:
sufficiently concrete and particularized because the
harm [was] the loss of the opportunity to comment
and appeal, not the specific impact or lack thereof of
the Plaintiffs’ comments. Plaintiffs need not assert
that any specific injury will occur in any specific
national forest that their members visit.
This finding cannot be squared with the Supreme Court’s
analysis in Summers. The Court expressly held that depriva-
tion of procedural rights, alone, cannot confer Article III
standing. See Summers, 129 S. Ct. at 1151. TWS concedes
this point on appeal. It points instead to the district court’s
finding that it suffered informational injury resulting from
2
The irony of this result is that following Summers, TWS and Anderson
have known that this single declaration was the centerpiece of their claim
to aesthetic and recreational standing. At oral argument, TWS’s counsel
acknowledged that an amended declaration or a new declaration in a
follow-on suit might well remedy any deficiency.
WILDERNESS SOCIETY v. REY 16109
“the violation of the obligation to provide notice.” It now
broadens this allegation to include not just informational
injury under the exemption from the notice requirement of
§ 215.20(b), but informational injury embodied in all three
provisions’ deprivation of its right to appeal.
[8] As a preliminary matter, the Forest Service urges us to
reject any standing argument based on the § 215.20(b) exemp-
tion from notice and comment requirements because it
decided not to appeal the district court’s ruling with respect
that provision. One problem with this tactic is that the notice,
comment, and appeal rights come as a package. The right to
appeal a Forest Service decision is of little value if one never
receives notice of that decision in the first place. In the end,
however, the Forest Service’s characterization of the appeal
has no bearing on the matter. While Summers does not
expressly discuss informational injury, the Court’s discussion
of procedural injury casts serious doubt on the applicability of
informational injury here. We are not convinced that the doc-
trine of informational injury can be applied to the statutory
framework of the ARA, regardless of the specific provision.
The notion of an informational injury serving as an injury-
in-fact sufficient for standing can be traced to Federal Elec-
tions Commission v. Akins, 524 U.S. 11 (1998). In that case,
a group of voters challenged the Federal Election Commis-
sion’s refusal to treat the American Israel Public Affairs Com-
mittee as a “political committee,” thus requiring disclosure of
certain information about campaign-related activities under
the Federal Election Campaign Act. Akins, 524 U.S. at 15-16.
The Court held that the voters had suffered an injury suffi-
ciently concrete and particularized to give them standing in
that they were denied information that the Federal Election
Campaign Act of 1971 required be made public. Id. at 21.
Although this informational injury was quite general and
widely shared, because “the informational injury at issue
[was] directly related to voting, the most basic of political
rights, [it wa]s sufficiently concrete and specific such that the
16110 WILDERNESS SOCIETY v. REY
fact that it [wa]s widely shared [did] not deprive Congress of
constitutional power to authorize its vindication in the federal
courts.” Id. at 24-25.
Courts have found similar statutory rights to information—
the deprivation of which can give rise to concrete injury suffi-
cient for the purposes of Article III standing—under the Free-
dom of Information Act (“FOIA”), Pub. Citizen v. United
States Dep’t of Justice, 491 U.S. 440, 449 (1989); the Fair
Housing Act, Havens Realty Corp. v. Coleman, 455 U.S. 363,
374 (1982); the Clean Water Act, American Canoe Ass’n, Inc.
v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 542
(6th Cir. 2004); and the Federal Advisory Committee Act
(“FACA”), Cummock v. Gore, 180 F.3d 282, 290-93 (D.C.
Cir. 1999).
According to TWS, the ARA also confers a statutory right
to information because it provides that “the Secretary shall
give notice of proposed actions of the Forest Service concern-
ing projects and activities implementing land and resource
management plans for the National Forest System.” This
information would have assisted TWS “in furthering [its]
goals of forest conservation, and in educating [its] members
and the public in general about environmentally harmful For-
est Service projects.” TWS also argues that it was denied
information, not otherwise available, by the provisions elimi-
nating its right to appeal. The right to appeal “provides the
public with substantial information about National Forest
projects that would not otherwise be available.”
[9] To ground a claim to standing on an informational
injury, the ARA must grant a right to information capable of
supporting a lawsuit. See generally Cass R. Sunstein, Infor-
mational Regulation and Informational Standing: Akins and
Beyond, 147 U. PA. L. REV. 613, 642-43 (1999) (concluding
that the “principal question after Akins, for purposes of ‘injury
in fact,’ is whether Congress or any other source of law gives
the litigant a right to bring suit”). Notice, of course, is a form
WILDERNESS SOCIETY v. REY 16111
of information (information that certain projects are being
proposed), however Congress’s purpose in mandating notice
in the context of the ARA was not to disclose information, but
rather to allow the public opportunity to comment on the pro-
posals. Notice is provided as a predicate for public comment.
Similarly, although an appeal might result in the dissemina-
tion of otherwise unavailable information, the statute does not
contemplate appeals for this purpose, but to allow the public
an opportunity to challenge proposals with which they dis-
agree. In other words, the ARA grants the public a right to
process and to participation. Even though these rights neces-
sarily involve the dissemination of information, they are not
thereby tantamount to a right to information per se.
[10] The Seventh Circuit’s treatment of informational
injury and the ARA is instructive. In Bensman v. United
States Forest Service, the court declined to find an explicit
right to information in the text of the ARA, explaining that:
The ARA’s history indicates that Congress intended
the statute to restore the citizen participation that
existed prior to the Service’s proposed 1992 rule
changes. In introducing the bill, Senator Fowler criti-
cized the Service’s proposal to modify “85 years” of
public participation in Service decisions, and hailed
the ARA as a way to open “a systematic channel for
public participation . . . as well as maintaining an
appeal system of review.” 138 Cong. Rec. S11,643
(daily ed. Aug. 6, 1992) (statement of Sen. Fowler).
He also noted that the appeals process “is simply a
chance for a citizen’s views, a taxpayer’s views
about his own forest” to be heard. Id.
By way of contrast, for example, FOIA’s goal is “to
serve the ‘basic purpose of ensuring an informed cit-
izenry, vital to the functioning of a democratic soci-
ety.’ ” Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122,
1123 (7th Cir. 2003) (quoting Solar Sources, Inc. v.
16112 WILDERNESS SOCIETY v. REY
United States, 142 F.3d 1033, 1037 (7th Cir. 1998)).
Similarly, Congress intended the explicit reporting
and informational requirements in FACA to control
advisory committees and to allow public scrutiny of
the advice provided to the Executive Branch by pri-
vate individuals. See Cummock, 180 F.3d at 284-85.
In short, statutes like FOIA and FACA that have
served as the basis for informational standing have
a goal of providing information to the public; the
ARA’s goal is simply to increase public participation
in the decision-making process. The difference in
purposes seems to belie [the] claim that the ARA
provides a right to information.
408 F.3d 945, 958 (7th Cir. 2005).
[11] We agree with the Seventh Circuit’s analysis.
Although Bensman did not discuss informational injury in
connection with the notice requirement (as opposed to the
appeal requirement), the analysis with respect to Congress’s
intention in enacting the ARA is equally applicable. Indeed,
it is borne out by the Supreme Court’s discussion of proce-
dural standing in Summers. See Summers, 129 S. Ct. at 1151.
There, the Court said that procedural injury, standing on its
own, cannot serve as an injury-in-fact. A concrete and partic-
ular project must be connected to the procedural loss. Id.
TWS urges us to recognize an informational injury as a result
of a procedural deprivation. It asks us, in effect, to modify the
Supreme Court’s mandate such that procedural deprivations
cannot be injuries-in-fact unless they are tied to particular
projects or unless they result in an informational harm. The
difficulty with TWS’s analysis is that it simply reframes every
procedural deprivation in terms of informational loss. This
approach would allow an end run around the Supreme Court’s
procedural injury doctrine and render its direction in Summers
meaningless. We decline to apply the theory of informational
injury in the context of the procedural rights encompassed by
WILDERNESS SOCIETY v. REY 16113
the ARA.
DISMISSED.