FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARTH ISLAND INSTITUTE; SEQUOIA
FORESTKEEPER, a California non-
profit corporation; HEARTWOOD, an
Indiana non-profit corporation;
CENTER FOR BIOLOGICAL DIVERSITY,
No. 05-16975
a New Mexico non-profit
corporation; SIERRA CLUB,
Plaintiffs-Appellees,
D.C. No.
CV-03-06386-JKS
v.
NANCY RUTHENBECK;* UNITED
STATES FOREST SERVICE; MIKE
JOHANNS;** DALE BOSWORTH,
Defendants-Appellants.
*Nancy Ruthenbeck is substituted for Del A. Pengilly pursuant to Fed.
R. App. P. 43(c)(2).
** Mike Johanns is substituted for Ann M. Veneman pursuant to Fed.
R. App. P. 43(c)(2).
6949
6950 EARTH ISLAND INSTITUTE v. RUTHENBECK
EARTH ISLAND INSTITUTE; SEQUOIA
FORESTKEEPER, a California non-
No. 05-17078
profit corporation; HEARTWOOD, an
Indiana non-profit corporation; D.C. No.
CENTER FOR BIOLOGICAL DIVERSITY, CV-03-06386-JKS
a New Mexico non-profit ORDER
corporation; SIERRA CLUB,
Plaintiffs-Appellants,
AMENDING
OPINION AND
v. DENYING
REHEARING AND
NANCY RUTHENBECK; UNITED
AMENDED
STATES FOREST SERVICE; ANN M.
OPINION
VENEMAN; DALE BOSWORTH,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, Chief Judge, Presiding
Argued and Submitted
June 12, 2006—San Francisco, California
Filed August 10, 2006
Amended June 8, 2007
Before: Mary M. Schroeder, Chief Judge, Susan P. Graber,
Circuit Judge, and Kevin Thomas Duffy,*** Senior Judge.
Opinion by Chief Judge Schroeder
***The Honorable Kevin Thomas Duffy, Senior Judge, United States
District Court for the Southern District of New York, sitting by designa-
tion.
EARTH ISLAND INSTITUTE v. RUTHENBECK 6953
COUNSEL
Katherine W. Hazard and Jennifer L. Scheller, U.S. Depart-
ment of Justice Environment & Natural Resources Division,
Washington, D.C., for the defendants-appellants.
6954 EARTH ISLAND INSTITUTE v. RUTHENBECK
Matt Kenna, Western Environmental Law Center, Durango,
Colorado, for the plaintiffs-appellees.
Thomas R. Lundquist, Crowell & Moring, LLP, Washington,
D.C., for Amicus Curiae.
ORDER
The panel has voted to deny the petition for rehearing.
Chief Judge Schroeder and Judge Graber have voted to deny
the petition for rehearing en banc, and Judge Duffy has so rec-
ommended.
The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested a vote on it.
The petitions for rehearing and rehearing en banc are
DENIED.
Plaintiffs-Appellees’ motion for clarification with regard to
the applicability of the opinion to both 36 C.F.R. §§ 215.12(f)
and 215.4(a) and inapplicability of the opinion to 36 C.F.R.
§ 215.18(b)(1) is GRANTED.
The opinion at Earth Island Institute v. Ruthenbeck, 459
F.3d 954 (9th Cir. 2006), is amended and, in the interest of
clarity, the attached amended opinion is substituted in its
place.
No further petitions for rehearing or rehearing en banc may
be filed.
EARTH ISLAND INSTITUTE v. RUTHENBECK 6955
OPINION
SCHROEDER, Chief Judge:
I. Overview
This is a government appeal from a district court judgment
enjoining Forest Service regulations that govern review of
decisions implementing forest plans, on the ground that the
regulations were manifestly contrary to the governing statute.
The Forest Service promulgated the challenged regulations
pursuant to the Forest Service Decisionmaking and Appeals
Reform Act (“ARA”), Pub. L. 102-381, tit. 111, § 322, 106
Stat. 1419 (1992) (codified at 16 U.S.C. § 1612 note). In a
cross-appeal, the environmentalist plaintiffs Earth Island
Institute et al. challenge the four regulations the district court
held were valid. The statute pertains to procedures relating to
public comment, notice, and administrative appeal of pro-
posed forest management actions. The government raises
standing and ripeness issues. We agree with the district court
that plaintiffs have established standing. But because only two
aspects of the regulations, 36 C.F.R. §§ 215.12(f) and
215.4(a) have actually been applied to a proposed project, we
hold that only those regulations are ripe for review. We affirm
the district court’s judgment that 36 C.F.R. §§ 215.12(f) and
215.4(a) conflict with the Appeals Reform Act and affirm the
nationwide injunction barring their application. We remand
the judgment and injunction with respect to the remaining
regulations to the district court with instructions to vacate for
lack of a controversy ripe for review.
II. Background
Plaintiffs, Earth Island Institute, Sequoia Forestkeeper,
Heartwood, Inc., Center for Biological Diversity, and the
Sierra Club (collectively “Earth Island”) are non-profit envi-
ronmental organizations. To establish their standing, plaintiffs
rely on the declaration of Jim Bensman, an employee and
6956 EARTH ISLAND INSTITUTE v. RUTHENBECK
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 pol-
icy. 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 chal-
lenged regulation.
The defendant, the United States Forest Service, prior to
1992, provided a post-decision administrative appeals pro-
cess, 36 C.F.R. pt. 217, for agency decisions documented in
a “decision memo,” “decision notice,” or “record of deci-
sion.” See 54 Fed. Reg. 3342 (Jan. 23, 1989); Heartwood, Inc.
v. U.S. Forest Serv., 316 F.3d 694, 696 (7th Cir. 2003). 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. See 57 Fed. Reg.
10,444 (Mar. 26, 1992). The 1992 proposal would have
replaced post-decision administrative appeals with pre-
decision notice and comment procedures for proposed proj-
ects on which the Forest Service had completed an Environ-
mental Assessment (“EA”) and a finding of no significant
impact (“FONSI”), in accordance with applicable provisions
of the National Environmental Policy Act of 1969 (“NEPA”).
Essentially, the proposal provided a categorical exclusion
from notice, comment and appeal for projects the Forest Ser-
vice deemed environmentally insignificant.
The 1992 proposal was greeted with considerable protest,
and environmental groups decried the loss of administrative
review. Congress, in response, enacted the ARA. Pub. L. No.
EARTH ISLAND INSTITUTE v. RUTHENBECK 6957
102-381, tit. III § 322, (codified at 16 U.S.C. § 1612 note).
Among other things, the ARA required the Forest Service to
establish an administrative appeals process with opportunity
for notice and comment. The ARA provides in material part:
(a) IN GENERAL.—In accordance with this section,
the Secretary of Agriculture, acting through the
Chief of the Forest Service, shall 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 Renew-
able Resources Planning Act of 1974 (16 U.S.C.
1601 et seq.) and shall modify the procedure for
appeals of decisions concerning such projects.
ARA § 322(a).
After a series of challenges to regulations promulgated pur-
suant to the ARA, see Heartwood, Inc., 316 F.3d 694, the
Forest Service reinstated the pre-1992 notice, comment and
administrative appeal procedure as an interim measure until
the Forest Service issued a final regulation implementing the
ARA. See 68 Fed. Reg. 33,582, 33,586. On June 4, 2003, the
Forest Service published a final rule revising the notice, com-
ment, and appeal procedures for “projects and activities
implementing land and resource management plans on
National Forest System lands.” 68 Fed. Reg. at 33,582 (June
4, 2003) (“2003 Rule”).
On June 5, 2003, the Forest Service published the final
implementing procedures for National Environmental Policy
Act Documentation Needed for Fire Management Activities
(“Fire CE”), 68 Fed. Reg. 33,814-24 (2003) (codified at For-
est Service Handbook 1909.15, ch. 30, § 31.2(10), (11)). This
action created a new category of projects, fire rehabilitation
activities on less than 4,200 acres, which could be excluded
from EA and Environmental Impact Statement (“EIS”) analy-
6958 EARTH ISLAND INSTITUTE v. RUTHENBECK
sis, and exempted from notice, comment and appeal under the
challenged regulations. Salvage timber sales of 250 acres or
less (“Timber Sale CE”) were also designated as categorical
exclusions on July 29, 2003. 68 Fed. Reg. 44,598-608 (2003)
(codified at Forest Service Handbook 1909.15, ch. 30, § 31.2
(12), (13), (14)).
On September 8, 2003, the Forest Service issued its Burnt
Ridge Project decision memo approving the timber sale and
treatment of 238 acres of post-fire forest area. The Burnt
Ridge Project timber sale proposal was prepared pursuant to
the Sierra Nevada Forest Plan Amendment Record of Deci-
sion, stemming from the 2002 McNally fire. The Burnt Ridge
Project area is located on the Hot Springs Ranger District of
Sequoia National Forest, approximately 8 air miles from Cali-
fornia Hot Springs, California. In the summer of 2002, a
human-caused fire known as the McNally Fire burned approx-
imately 150,000 acres of forest and chaparral primarily within
the Sequoia National Forest. Between January and March
2003, the Sequoia National Forest sent out three scoping
notices pursuant to NEPA, for three separate post-fire salvage
logging projects. Each of the adjacent projects was planned as
a result of the McNally fire, and proposed identical or highly
similar logging prescriptions. The Burnt Ridge Project, as
approved by the Forest Service decision memo, would have
resulted in the logging of approximately 238 acres of burned
forest for sale as timber. The decision memo applied the cate-
gorical exclusion provisions of 36 C.F.R. §§ 215.12(f) and
215.4(a). The decision expressly states that “this project is not
subject to appeal because it involves projects or activities
which are categorically excluded from documentation in an
environmental impact statement or environmental assess-
ment.” Eventually, after this litigation was instituted, the par-
ties settled that challenge and the Forest Service withdrew the
Burnt Ridge Project.
On December 1, 2003, Earth Island filed a complaint
against the Forest Service, challenging the 2003 Rule as
EARTH ISLAND INSTITUTE v. RUTHENBECK 6959
applied to the Burnt Ridge Project, and bringing facial chal-
lenges to nine provisions of the 2003 Rule. The Burnt Ridge
Project decision memo was issued under provisions which the
Forest Service claim categorically exclude the project under
the challenged regulations in this case from documentation in
an EA or EIS, and thereby from administrative notice, com-
ment, and appeal. The district court invalidated five chal-
lenged regulations and upheld four regulations, Earth Island
v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal. 2005), and issued
a nationwide injunction against the application of the invalid
regulations. This appeal and cross-appeal followed.
III. Standing
Earth Island argues that plaintiffs in this case had standing
on the basis of the personal and procedural injuries docu-
mented in the Bensman affidavit because their aesthetic inter-
ests in the national forests are harmed by the regulations and,
more specifically, they contend that their procedural interests
in participating in the administrative notice, comment, and
appeal process are harmed. The government argues that plain-
tiffs have suffered no cognizable injury in fact with respect to
the challenged regulations, because the regulations have not
yet been applied.
[1] To satisfy Article III standing requirements, a plaintiff
must show that: (1) plaintiff has suffered “injury in fact” that
is (a) concrete and particularized; and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is fairly trace-
able to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision. Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)).
The parties do not dispute that an organizational plaintiff
has standing to bring suit on behalf of its members “when its
6960 EARTH ISLAND INSTITUTE v. RUTHENBECK
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.” Id. at 181.
[2] Aesthetic and environmental interests generally are cog-
nizable injuries in fact, “[b]ut the ‘injury in fact’ test requires
more than an injury to a cognizable interest. It requires that
the party seeking review be himself among the injured.”
Sierra Club v. Morton, 405 U.S. 727, 735-36 (1972). An affi-
ant’s “some day” intentions to return to an area that will be
affected by a project do not support a finding of “actual or
imminent injury” unless the affiant has specific plans to return
to the area. Lujan v. Defenders of Wildlife, 504 U.S. at 564.
[3] In this case, plaintiffs persuasively argue, and the dis-
trict court properly concluded, that Bensman’s preclusion
from participation in the appeals process may yield dimin-
ished recreational enjoyment of the national forests.
[4] 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.
These are procedural regulations governing the opportunity
for public comment. The ARA does not address any substan-
tive Forest Service program and governs only the process.
Procedural and informational injuries may be the basis for
injury in fact for standing purposes. See City of Davis v. Cole-
man, 521 F.2d 661, 671 (9th Cir. 1975) (“The procedural
injury implicit in agency failure to prepare an EIS [is] the cre-
ation of a risk that serious environmental impacts will be
overlooked is itself a sufficient ‘injury in fact’ to support
standing. . . .”). Because “ ‘NEPA is essentially a procedural
statute designed to ensure that environmental issues are given
proper consideration in the decisionmaking process,’ ” injury
alleged to have occurred as a result of violating this proce-
EARTH ISLAND INSTITUTE v. RUTHENBECK 6961
dural right confers standing. Idaho Conservation League v.
Mumma, 956 F.2d 1508, 1514 (9th Cir. 1992) (quoting Trust-
ees for Alaska v. Hodel, 806 F.2d 1378, 1382 (9th Cir. 1986));
see also United States v. Students Challenging Regulatory
Agency Procedures (SCRAP), 412 U.S. 669 (1973); Friends
of the Earth v. U. S. Navy, 841 F.2d 927, 931 (9th Cir.1988)
(noting that “[t]his court has long recognized that failure to
follow procedures designed to ensure that the environmental
consequences of a project are adequately evaluated is a suffi-
cient injury in fact to support standing”).
[5] Earth Island was unable to appeal the Burnt Ridge Proj-
ect because the Forest Service applied 36 C.F.R. § 215.12(f);
the loss of that right of administrative appeal is sufficient pro-
cedural injury in fact to support a challenge to the regulation.
Plaintiffs in this case are “injure[d] . . . in the sense contem-
plated by Congress,” Mumma, 956 F.2d at 1516; because
Plaintiffs are precluded from appealing decisions like the
Burnt Ridge Project, and that Project itself, under the 2003
Rule. The ARA is entirely procedural, and Congress contem-
plated public involvement in the administrative notice, com-
ment, and appeal process.
[6] Plaintiffs have satisfied the remaining standing require-
ments. The deprivation of the procedural right of administra-
tive notice, comment, and appeal is “fairly traceable” to the
Forest Service’s regulations. A favorable decision invalidat-
ing the regulation would redress Earth Island’s injury.
Accordingly, Earth Island has established standing on the
basis of both personal and procedural injury.
IV. Ripeness
The Forest Service argues that the challenges to the regula-
tions are unripe because they have not yet been applied in a
specific context and that this court should decline to decide
the challenge where the record is incomplete. Earth Island
argues that no further record development is needed because
6962 EARTH ISLAND INSTITUTE v. RUTHENBECK
the challenged regulations are final agency action and present
purely legal questions.
“The jurisdiction of federal courts is defined and limited by
Article III of the Constitution. In terms relevant to the ques-
tion for decision in this case, the judicial power of federal
courts is constitutionally restricted to ‘cases’ and ‘controver-
sies.’ ” Flast v. Cohen, 392 U.S. 83, 94 (1968). Courts must
refrain from deciding abstract or hypothetical controversies
and from rendering impermissible advisory opinions with
respect to such controversies. See id. at 96. “[A] federal court
has neither the power to render advisory opinions nor to
decide questions that cannot affect the rights of litigants in the
case before them. Its judgments must resolve a real and sub-
stantial controversy admitting of specific relief through a
decree of a conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical
state of facts.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975)
(internal quotation marks omitted). An advisory opinion
results if the court resolves a question of law that is not pre-
sented by the facts of the case. See, e.g., In re Michaelson,
511 F.2d 882, 893 (9th Cir. 1975) (“[I]t would be constitu-
tionally improper for us to reach this question since the issue
lacks the necessary facts to make it concrete.”).
[7] Ripeness is a prudential doctrine intended, in part, to
prevent judicial review of legal issues outside the limits of
Article III cases and controversies. Plaintiffs rely on a selec-
tive reading of Abbott Laboratories v. Gardner, in which the
Supreme Court established a presumption in favor of ripeness
for regulations that constitute final agency action. 387 U.S.
136, 140 (1967) (overruled on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977)). In that pre-enforcement chal-
lenge to FDA regulations, the Supreme Court held the regula-
tions were ripe for review because the challenge presented a
purely legal question: whether the FDA Commissioner had
exceeded his rulemaking authority. The legal issue could be
resolved on the record as it stood, without reference to more
EARTH ISLAND INSTITUTE v. RUTHENBECK 6963
specific facts. Abbott Laboratories also established a two-part
ripeness test: first, a reviewing court must ask if the issues are
fit for judicial decision; and second, a reviewing court consid-
ers the hardship to the parties of withholding review. Id. at
149.
We are persuaded by the Forest Service’s reliance on Toilet
Goods Association, Inc. v. Gardner, 387 U.S. 158 (1967),
where the Supreme Court held that a pre-enforcement chal-
lenge to FDA regulations was premature. In that case, the
petitioners challenged regulations authorized by the Color
Additive Amendments that would allow the FDA Commis-
sioner to revoke product certifications if the agency was not
given free access to color additive formulas and manufactur-
ing facilities and processes. In Toilet Goods, the regulations
were final agency action and the question presented was
purely legal. Id. at 163. Nonetheless, the Supreme Court held
that the issues failed the first part of the Abbott Laboratories
test. The issues were not fit for judicial decision because the
regulations’ effects were speculative and the record was
incomplete. Id. at 163-64. The Court also held under the sec-
ond Abbott Laboratories inquiry that the challenge was unripe
because the situation was not one “in which primary conduct
[was] affected.” Id. at 164.
The Supreme Court also emphasized the need for factual
context in Lujan v. National Wildlife Federation, in which the
Supreme Court emphasized the ripeness doctrine, stating that
a regulation is ordinarily not ripe for review “until the scope
of the controversy has been reduced to more manageable pro-
portions, and its factual components fleshed out, by some con-
crete action applying the regulation to the claimant’s situation
in a fashion that harms or threatens to harm him.” 497 U.S.
871, 891 (1990) (emphasis added). As the law of ripeness has
evolved, the Supreme Court and circuit courts have repeatedly
declined premature review. See Nat’l Park Hospitality Ass’n
v. Dep’t, 538 U.S. 803, 812 (2003) (holding that although the
question presented was purely legal and the rule constituted
6964 EARTH ISLAND INSTITUTE v. RUTHENBECK
final action, further factual development would “significantly
advance our ability to deal with the legal issues presented” so
the matter was not ripe for judicial review); Reno v. Catholic
Soc. Servs., 509 U.S. 43 (1993) (agency rules that will apply
at a later stage are not ripe for immediate judicial review); see
also Sabre, Inc. v. Dep’t of Transp., 429 F.3d 1113 (D.C. Cir.
2005) (a purely legal claim may be less fit for judicial resolu-
tion when it is clear that a later as-applied challenge will pre-
sent the court with a richer and more informative factual
record); Louisiana Envtl. Action Network v. EPA, 172 F.3d 65
(D.C. Cir. 1999) (ripeness asks whether consideration of the
issue would benefit from a more concrete setting); Va. Soc’y
for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379
(4th Cir. 2001) (rationale of ripeness doctrine is to prevent
courts from entangling themselves in abstract disagreements
over administrative policies).
[8] On this record, Earth Island has established ripeness
only with respect to 36 C.F.R. §§ 215.12(f) and 215.4(a),
which categorically exempt from appeal Forest Service
actions that do not require an EA or EIS under NEPA. In their
complaint, Earth Island alleges that “these new regulations”
(the 2003 Rule) have been applied to decisions across the
nation, including the Burnt Ridge Project. That is the only
project specifically referenced in the complaint. However,
only 36 C.F.R. §§ 215.12(f) and 215.4(a) were applied in the
context of the Burnt Ridge Project. For that project, plaintiffs
were unable to appeal the timber sale in the decision memo
because the Forest Service had categorically excluded the
project from administrative notice, comment, and appeal.
Earth Island has not shown that the other challenged regula-
tions were applied in the context of the Burnt Ridge Timber
Sale or any other specified project. The record is speculative
and incomplete with respect to the remaining regulations, so
the issues are not fit for judicial decision under Abbott Labo-
ratories. While Earth Island has established sufficient injury
for standing purposes, it has not shown the sort of injury that
would require immediate review of the remaining regulations.
EARTH ISLAND INSTITUTE v. RUTHENBECK 6965
There is not a sufficient “case or controversy” for us to review
regulations not applied in the context of the record before this
court.
The parties’ agreement to settle the Burnt Ridge Timber
Sale dispute does not affect the ripeness of Earth Island’s
challenge to 36 C.F.R. §§ 215.12(f) and 215.4(a). The record
remains sufficiently concrete to permit this court to review the
application of the regulation to the project and to determine
if the regulations as applied are consistent with the ARA.
V. The Validity of 36 C.F.R. §§ 215.12(f) and 215.4(a)
The relevant statute provides:
SEC. 322. FOREST SERVICE DECISIONMAKING AND
APPEALS REFORM.
(a) IN GENERAL.—In accordance with this section,
the Secretary of Agriculture, acting through the
Chief of the Forest Service, shall 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 Renew-
able Resources Planning Act of 1974 (16 U.S.C.
1601 et seq.) and shall modify the procedure for
appeals of decisions concerning such projects.
Pub. L. 102-381 (codified at 16 U.S.C. § 1612 note). The
Forest Service argues that the promulgation of 36 C.F.R.
§ 215.12(f), categorically excluding from appeal any agency
decision that does not require an EA or EIS, and 36 C.F.R.
§ 215.4(a), categorically excluding from notice and comment
those same decisions, is the agency’s reasonable interpretation
of ambiguous portions of the ARA. Earth Island argues that
the plain language of the statute requires an administrative
notice, comment, and appeal process. In the alternative, Earth
6966 EARTH ISLAND INSTITUTE v. RUTHENBECK
Island also argues that the legislative history of the ARA ren-
ders the challenged regulation manifestly contrary to the stat-
ute because the statute was passed in response to a proposal
to eliminate the right to notice, comment, and an administra-
tive appeal.
[9] In Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) (hereinafter “Chevron”),
the Supreme Court set forth the familiar two-step approach
for courts to evaluate agency regulations promulgated pursu-
ant to statute. First, courts must examine the statute itself to
determine whether Congress has spoken directly to the precise
question. Id. at 842. If the intent of Congress is clear, that is
the end of the inquiry because agencies (and courts reviewing
their actions) must give effect to the unambiguously
expressed intent of Congress. Id. at 842-43. If an agency’s
regulation is in conflict with the plain language of the statute,
reviewing courts do not owe deference to the agency’s inter-
pretation.
Second, “if the statute is silent or ambiguous with respect
to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the
statute.” Id. at 843. “In determining whether an agency’s con-
struction is permissible, the court considers whether Congress
has explicitly instructed the agency to flesh out specific provi-
sions of the general legislation, or has impliedly left to the
agency the task of developing standards to carry out the gen-
eral policy of the statute.” Tovar v. U. S. Postal Serv., 3 F.3d
1271, 1276 (9th Cir. 1993). “When relevant statutes are silent
on the salient question, we assume that Congress has implic-
itly left a void for an agency to fill. We must therefore defer
to the agency’s construction of its governing statutes, unless
that construction is unreasonable.” Chevron, 467 U.S. at 843-
44. Accordingly, “reasonableness” is the standard where
courts review regulations under Chevron’s second step.
EARTH ISLAND INSTITUTE v. RUTHENBECK 6967
[10] Our first inquiry is whether Congress has spoken
directly to the issue governed by 36 C.F.R. §§ 215.12(f) and
215.4(a). The ARA provides, in relevant part:
In accordance with this section, the Secretary of
Agriculture, acting through the Chief of the Forest
Service, shall establish a notice and comment pro-
cess for proposed actions of the Forest Service con-
cerning projects and activities implementing land
and resource management plans developed under the
Forest and Rangeland Renewable Resources Plan-
ning Act of 1974 (16 U.S.C. § 1601 et seq.) and
shall modify the procedure for appeals of decisions
concerning such projects.
16 U.S.C. § 1612 note, § 322(a) (emphasis added). The regu-
lations read, in relevant part:
The following decisions and actions are not subject
to appeal under this part, except as noted: . . . (f)
Decisions for actions that have been categorically
excluded from documentation in an EA or EIS . . . .
36 C.F.R. § 215.12 (f).
The procedures for legal notice (§ 215.5) and
opportunity to comment (§ 215.6) do not apply to:
(a) Projects and activities which are categorically
excluded from documentation in an [EIS] or [EA]
...
36 C.F.R. § 215.4(a).
[11] The plain language of the ARA states that the Forest
Service “shall” provide for administrative notice, comment,
and appeal. The statutory language does not refer to NEPA.
The statute does not provide for any exclusions or exemptions
6968 EARTH ISLAND INSTITUTE v. RUTHENBECK
from its requirement that the Forest Service provide notice,
comment, and an administrative appeal for decisions imple-
menting Forest Plans. Accordingly, 36 C.F.R. §§ 215.12(f)
and 215.4(a) conflict with the plain language of the statute.
Even if we could construe the statute as ambiguous, the
regulation is invalid because it fails Chevron’s second step:
If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of
Congress. If, however, the court determines Con-
gress has not directly addressed the precise question
at issue, the court does not simply impose its own
construction on the statute, as would be necessary in
the absence of an administrative interpretation.
Rather, if the statute is silent or ambiguous with
respect to the specific issue, the question for the
court is whether the agency’s answer is based on a
permissible construction of the statute.
Chevron, 467 U.S. at 842-43.
The Forest Service argues that the categorical exclusions
are the result of the Secretary’s reasonable construction of the
statute to distinguish between agency actions requiring an EA
or EIS and projects “that lack significant individual or cumu-
lative environmental impacts.” The Forest Service relies
exclusively on its contention that the regulation warrants
Chevron deference as a reasonable construction of the ARA,
and argues that the district court erred in finding the categori-
cal exclusion regulations “manifestly contrary” to the ARA.
Plaintiff Earth Island contends that the legislative history of
the ARA clearly indicates that Congress did not intend to
exclude timber sales and other actions from administrative
notice, comment, and appeal simply because they are
excluded from NEPA analysis. Earth Island argues that a
EARTH ISLAND INSTITUTE v. RUTHENBECK 6969
number of other significant decisions implementing forest
plans, including oil leasing, mining, and off-road vehicle use,
were intended to be subject to such requirements under the
ARA. Earth Island cites legislative history, including a con-
ference report and a comment letter from Representative
Richardson stating that “[w]e believe that the agency’s recent
proposal to eliminate appeals of timber sales, oil and gas
leases, and other project level activities is a slap in the face
of democratic values.” 138 Cong. Rec. E2075-02, 1992 WL
157159 (July 2, 1992). Earth Island argues, and the district
court concluded, that the ARA was passed in response to the
proposed changes to the appeal process that would eliminate
appeals for agency actions that previously required “decision
documents” prior to 1992.
Earth Island’s arguments are persuasive. Prior to 1992, the
Forest Service notice, comment, and appeals process applied
to a range of agency actions and programs, including “timber
sales, road and facility construction, range management and
improvements, wildlife and fisheries habitat improvement
measures, forest pest management activities, removal of cer-
tain minerals or mineral materials, land exchanges and acqui-
sitions, and establishment or expansion of winter sports or
other special recreational sites.” 36 C.F.R. § 217.3(b) (1992).
At a minimum, the categorical exclusion of timber sales from
administrative notice, comment, and appeal is contrary to
Congressional intent to provide such processes through the
ARA. The ARA was passed in response to a proposal to elim-
inate appeals for decisions that would be categorically
excluded from appeal, so the Forest Service’s attempt to cir-
cumvent Congressional intent to preserve the administrative
appeals process cannot be a permissible interpretation of the
ARA. The Forest Service, to comply with the ARA, must pro-
mulgate regulations that preserve administrative appeals for
any decisions subject to administrative appeal before the pro-
posed changes in 1992. Had Congress wanted to categorically
eliminate the right of notice, comment, and appeal for timber
6970 EARTH ISLAND INSTITUTE v. RUTHENBECK
sales and other categorically excluded Forest Service actions,
the ARA would not have been necessary.
[12] The exemption of categorically excluded Forest Ser-
vice actions from notice, comment, and administrative appeal
is manifestly contrary to both the language and the purpose of
the ARA. Therefore, 36 C.F.R. §§ 215.12(f) and 36 C.F.R.
215.4(a) are invalid.
VI. Remaining Issues
On July 26, 2005 (following the district court’s order of
July 7, 2005), the Forest Service filed a Rule 60(b)(6) motion
for clarification or amendment of the court’s order, asking
that the injunction apply only to the Eastern District of Cali-
fornia, and asking for prospective application only. On Sep-
tember 16, 2005, the district court clarified that the scope of
the injunction was nationwide, precluding any enforcement
and implementation of the invalidated regulations. The district
court further clarified that the injunction would apply only
prospectively, to decisions made after the July 7, 2005 order
date. The Forest Service challenges the geographic scope of
the injunction on appeal.
[13] The nationwide injunction, as applied to our decision
to affirm the district court’s invalidation of 36 C.F.R.
§§ 215.12(f) and 215.4(a), is compelled by the text of the
Administrative Procedure Act, which provides in relevant
part:
To the extent necessary to decision and when pre-
sented, the reviewing court shall decide all relevant
questions of law, interpret constitutional and statu-
tory provisions, and determine the meaning or appli-
cability of the terms of an agency action. The
reviewing court shall . . . (2) hold unlawful and set
aside agency action, findings, and conclusions found
EARTH ISLAND INSTITUTE v. RUTHENBECK 6971
to be—(A) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law . . . .
5 U.S.C. § 706 (emphasis added). The Ninth Circuit has set
aside regulations that are not permissible interpretations of the
governing statute, and we affirm the district court’s decision
to do so here. See, e.g., NRDC v. EPA, 966 F.2d 1292, 1304
(9th Cir. 1992) (vacating a Clean Water Act rule); Asarco v.
EPA, 616 F.2d 1153, 1162 (9th Cir. 1980) (vacating a Clean
Air Act rule).
[14] The district court did not abuse its discretion in issuing
a nationwide injunction. We do not decide whether the district
court properly enjoined enforcement of 36 C.F.R.
§ 215.18(b)(1), because the Forest Service did not appeal the
district court’s ruling as to that regulation. See Erlin v. United
States, 364 F.3d 1127, 1130 (9th Cir. 2004). Our decision,
however, vacates the district court’s injunction order with
respect to all other challenged regulations except 36 C.F.R.
§§ 215.12(f) and 215.4(a). The nationwide injunction against
enforcement of 36 C.F.R. §§ 215.12(f) and 215.4(a) is
AFFIRMED.
VII. Conclusion
We AFFIRM the district court’s invalidation of 36 C.F.R.
§§ 215.12(f) and 215.4(a) and the nationwide injunction
against their enforcement. We REMAND the judgment and
injunction with respect to the remaining regulations, except
36 C.F.R. § 215.18(b)(1), to the district court with instructions
to vacate for lack of a controversy ripe for review. The parties
shall bear their own costs on appeal.