United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 1998 Decided January 15, 1999
No. 97-5317
Wyoming Outdoor Council, et al.,
Appellants
v.
United States Forest Service, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00355)
Susan D. Daggett argued the cause for appellants. With
her on the briefs were Daniel F. Heilig and Robert B.
Wiygul.
M. Alice Thurston, Attorney, United States Department of
Justice, argued the cause for the federal appellees. With her
on the brief were Lois J. Schiffer, Assistant Attorney Gener-
al, Robert L. Klarquist and Wells D. Burgess, Attorneys.
Charles L. Kaiser argued the cause for appellees Marathon
Oil Company and Rocky Mountain Oil and Gas Association.
With him on the briefs were Kirby J. Iler, Charles A. Breer
and Ezekiel J. Williams.
Before: Williams, Sentelle and Garland, Circuit Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Appellants Wyoming Outdoor
Council and various other environmental groups (collectively
"WOC") appeal from the district court judgment affirming a
decision of the United States Forest Service ("Forest Ser-
vice") authorizing oil and gas leasing of land in the Shoshone
National Forest in northwestern Wyoming. WOC contends
that the Forest Service violated both (1) its own regulations
governing the leasing of land, 36 C.F.R. s 228.102(e), and (2)
the National Environmental Policy Act ("NEPA"), 42 U.S.C.
s 4321 et seq., by authorizing oil and gas leasing without first
determining whether an adequate site-specific environmental
review had been performed. We conclude that the Forest
Service did not violate its own regulations and that WOC's
NEPA claim is premature. As a result, we dismiss WOC's
NEPA claim as outside our jurisdiction and affirm the district
court's judgment.
I. Background
A. Statutory and Regulatory Framework
In 1987, Congress enacted the Federal Onshore Oil and
Gas Leasing Reform Act of 1987, Pub. L. No. 100-203,
subtitle B, 101 Stat. 1330, codified at 30 U.S.C. s 226(g)-(h),
which governs the issuance of oil and gas leases for National
Forest Service ("NFS") lands. The Act divides responsibility
and authority for the issuing of such leases between the
Secretary of Interior, acting through the Bureau of Land
Management ("BLM"), and the Secretary of Agriculture,
acting through the Forest Service. 30 U.S.C. s 226(h); 43
C.F.R. s 3101.7-2(a). The first responsibility is that of the
Forest Service, and it is the exercise of that authority which
we review today. The Act provides that the Forest Service
shall regulate all surface-disturbing activities on NFS lands.
30 U.S.C. s 226(g). No permit to drill on NFS lands may be
granted without analysis and approval by the Forest Service
of a plan of operations covering proposed surface-disturbing
activities within the lease area. Id.
In 1990, the Forest Service promulgated regulations imple-
menting its responsibilities under the Act. The regulations
set up a two-stage process for oil and gas leasing. The first
stage is the "leasing analysis" stage, which involves the
identification and mapping of areas that might be suitable for
leasing. 36 C.F.R. s 228.102(c). The second stage is the
"leasing decision for specific lands" stage, during which the
Forest Service authorizes the BLM to offer specific lands for
leasing. 36 C.F.R. s 228.102(e). The regulations require
that authorization of leasing by the Forest Service shall be
"subject to" three separate site-specific factual findings made
by the Forest Service "[a]t such time as specific lands are
being considered for leasing." Id. First, the Forest Service
must "verify" that oil and gas leasing of the specific lands
being considered has been "adequately addressed in a NEPA
document, and is consistent with the Forest land and re-
source management plan." Id. s 228.102(e)(1). If the Forest
Service determines that NEPA has not been adequately
addressed or further environmental analysis is needed, "addi-
tional environment analysis shall be done before a leasing
decision for specific lands will be made." Id. Second, the
Forest Service must "ensure" that conditions of surface occu-
pancy identified in s 228.102(c)(1) are properly included as
stipulations in any resulting leases. Id. s 228.102(e)(2). Fi-
nally, the Forest Service must "determine" that "operations
and development could be allowed somewhere on each pro-
posed lease," except where stipulations in the leases will
prohibit all surface occupancy. Id. s 228.102(e)(3).
The preamble to the regulations contains language relevant
to determining the order in which the steps laid out in the
Forest Service regulation are to be performed. The pream-
ble states that the decision to authorize the BLM to offer
leases is made "at the conclusion of" the specific lands
decision. 55 Fed. Reg. 10,423, 10,428-429 (Mar. 21, 1990).
The preamble further states that when specific tracts of land
have been identified, "the Forest Service will decide whether
to authorize the BLM to offer the lease." Id. at 10,429.
Finally, the preamble states that the Forest Service will
decide whether to authorize the BLM to offer leases "[o]nce a
conclusion is made with respect to each of the three required
determinations" outlined in s 228.102(e), specifying that
"[t]he only lease(s) that the Bureau of Land Management
shall be authorized to offer are those for which the Forest
Service has [made the three required findings]." Id. at
10,430.
The Forest Service has interpreted the regulations as being
satisfied as long as the three required findings are made at
some time before leases are actually issued. Thus, the Ser-
vice has adopted a procedure whereby the combined "leasing
analysis" and "specific lands" decisions are made on the basis
of the environmental analysis set forth in 36 C.F.R.
s 228.102(c) before the specific lease parcels are identified by
the BLM. When deciding whether certain lands are appro-
priate for leasing, the Forest Service first undertakes a
comprehensive oil and gas leasing analysis for forest lands.
36 C.F.R. s 228.102(c). It excludes from consideration lands
that are unavailable for leasing under statute or current
regulation. Id. s 228.102(c)(1)(iii). On the remaining lands,
the Forest Service studies all environmental resources that
may be affected by oil and gas activities. Id. s 228.102(c)(4).
The Forest Service and the BLM project reasonably foresee-
able oil and gas activities that may occur on forest lands. Id.
s 228.102(c)(3). The Forest Service identifies leasing alter-
natives, id. s 228.102(c)(2), and analyzes the potential envi-
ronmental impacts of oil and gas activities projected for each
alternative on all forest resources, id. s 228.102(c)(4). The
Forest Service then prepares maps depicting lands closed to
oil and gas activities, lands open to those activities, and
specific stipulations imposed for lands open to leasing. Id.
s 228.102(c)(1). At this point, the Forest Service, without
making the three required findings outlined in s 228.102(e),
turns the process over to the BLM, which designates lease
parcels and forwards those designations to the Forest Ser-
vice. 43 C.F.R. s 3101.7-1(a). Only then does the Forest
Service consider the three requirements of s 228.102(e), since
the Forest Service interprets the "subject to" language of
s 228.102(e) as merely directing it to make the three findings
at any point before leases are actually issued.
When the BLM proposes to sell lease rights to specific
parcels, the Forest Service conducts a "verification" proce-
dure pursuant to 36 C.F.R. s 228.102(e). In that procedure,
the Service determines whether the three finding require-
ments are met. If the Service determines that the require-
ments are met with respect to a specific parcel, it consents to
the sale by the BLM. If NEPA has not been adequately
addressed or further environmental analysis is otherwise
required, the Service does not consent to the lease, but
undertakes additional environmental analysis.
Once the Forest Service gives its final consent to the BLM
to lease a specific parcel, the BLM itself determines whether
any additional stipulations should be attached, and makes its
independent decision whether to lease. 43 C.F.R. s 3101.7-
2(a), (b). Third parties may protest the inclusion of a parcel
in the lease sale and, if the protest is rejected, may appeal the
decision to the Interior Board of Land Appeals ("IBLA").
Id. s 3101.7-3(a). The IBLA has held that, where the BLM
is relying on the Forest Service's NEPA compliance to dis-
charge its own NEPA responsibilities concerning the decision
to offer the lease, the adequacy of that NEPA compliance will
be considered on appeal to the IBLA. Colorado Envtl.
Coalition, 125 IBLA 210, 220 (1993).
B. Procedural History
On April 11, 1991, the Forest Service issued a notice of
intent to prepare an environmental impact statement ("EIS")
commencing the environmental review process under NEPA
to determine what lands in the Shoshone National Forest
could be made available for oil and gas leasing and what
conditions could be attached to future leases. 56 Fed. Reg.
14,682 (Apr. 11, 1991). A working group, comprised of repre-
sentatives from industry, environmental and other interest
groups (including WOC), other agencies, local governments,
and media, was formed to assist in examining the question.
On June 12, 1992, the Forest Service released a draft EIS
setting forth a number of alternatives for oil and gas leasing.
In December 1992, after receiving a number of public com-
ments in opposition to leasing forest lands, the Forest Service
issued a final EIS. In December 1995, the Shoshone Nation-
al Forest supervisor issued a record of decision ("ROD"),
making 950,000 acres of the forest available for oil and gas
leasing. In both the EIS and ROD, the Forest Service
expressly stated that it was not making any of the findings
required under 36 C.F.R. s 228.102(e), including a finding
that NEPA compliance was adequate. The Forest Service
stated that these findings would be made at a later date.
WOC challenged the Forest Service's failure to include the
required findings in the EIS and ROD. WOC contended that
the Forest Service's authorization of leasing without making
the required findings violated both its own regulations and its
obligations under NEPA. It pursued administrative review
of the EIS and ROD, seeking a remand of the decisions and a
stay of their implementation pending further environmental
review. On October 9, 1996, a Deputy Regional Forester
denied WOC's administrative appeal. WOC requested discre-
tionary review of the Deputy Regional Forest Service deci-
sion. On November 22, 1996, the Forest Service informed
WOC that it was denying that request.
On February 21, 1997, WOC and others filed suit in the
United States District Court for the District of Columbia
against the Forest Service and prospective lessees of the
disputed lands, challenging the procedure that the Forest
Service had announced it would use for the allocation of oil
and gas leases in the Shoshone. The district court granted
summary judgment in favor of the Forest Service and the
other defendants, holding that the Forest Service's interpre-
tation of its own regulations was entitled to "substantial
deference" and was not unreasonable. Wyoming Outdoor
Council v. United States Forest Serv., 981 F. Supp. 17, 18
(D.D.C. 1997). The court further ruled that the Forest Ser-
vice's EIS was sufficiently site-specific that it did not violate
NEPA requirements. Id. at 20. WOC filed the present
appeal.
In the meantime, the Forest Service continued with its
administrative handling of the leasing question. On May 3,
1997, the Service completed the required NEPA verification
and validation process under 36 C.F.R. s 228.102(e). Follow-
ing this verification process, in April 1998, the BLM gave
notice that it would be offering a competitive oil and gas lease
sale, which would include three parcels in the Shoshone
National Forest. The BLM subsequently leased one of the
three parcels after receiving competitive bids. A second was
later leased non-competitively. On June 1, 1998, WOC filed
an administrative protest of the BLM's offering of the three
Shoshone leases. In its protest, WOC raised many of the
same issues as it has in this case, including its allegation that
the Forest Service, by authorizing the BLM to issue leases
prior to conducting the verification process, violated NEPA
and the Forest Service's own regulations.
II. Jurisdiction
At the suggestion of the court, the parties addressed the
question of our jurisdiction. Because Article III courts are
courts of limited jurisdiction, we must examine our authority
to hear a case before we can determine the merits. Steel Co.
v. Citizens for a Better Environment, 118 S. Ct. 1003, 1012-13
(1998). At the most elemental level, the constitutional mini-
mum for the exercise of our jurisdiction is a dispute present-
ing a justiciable "case or controversy." U.S. Const. art. III,
s 2; Allen v. Wright, 468 U.S. 737, 750 (1984). The courts
have developed various doctrines of case-or-controversy juris-
prudence designed to "test the fitness of controversies for
judicial resolution." Louisiana Envtl. Action Network v.
Browner, 87 F.3d 1379, 1382 (D.C. Cir. 1996). One of these
doctrines requires that litigants seeking to invoke our juris-
diction must have "standing." Although the Forest Service is
willing to concede jurisdiction, the private appellees, at least
under our prodding, raise the contention that appellants lack
standing to pursue their claims. Because this is a jurisdic-
tional question, the Forest Service's concession is of no
moment, and even if no appellee objected to the lack of
standing, we would be required to examine it on our own
motion. Green v. Department of Commerce, 618 F.2d 836,
839 (D.C. Cir. 1980) ("Parties may not confer jurisdiction
upon the court by consent.").
In order to establish standing under Article III, a litigant
seeking to invoke the jurisdiction of a federal court must
demonstrate that (1) it has suffered an injury-in-fact (2) which
is caused by, or is fairly traceable to, the defendant's alleged
unlawful conduct and (3) which is likely to be redressed by a
favorable decision of the court. Lujan v. Defenders of Wild-
life, 504 U.S. 555, 560 (1992). Even where these constitution-
al requisites for Article III standing are present, a party may
still lack standing under "prudential" principles. See Glad-
stone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100
(1979); Valley Forge Christian College v. Americans United
for Separation of Church and State, Inc., 454 U.S. 464, 474-
75 (1982); Navegar, Inc. v. United States, 103 F.3d 994, 998
(D.C. Cir. 1997). Litigants seeking to assert the rights of
third parties, proffering grievances unrelated to the "zone of
interests" intended to be protected or regulated by a particu-
lar statutory or constitutional provision, or seeking adjudica-
tion of generalized grievances more appropriately addressed
in the representative branches have been found to lack stand-
ing on prudential grounds. See Valley Forge, 454 U.S. at
474-75; Gladstone, 441 U.S. at 99-100; Allen, 468 U.S. at
751. The constitutional and prudential standing require-
ments assure that "the legal questions presented to the court
will be resolved, not in the rarified atmosphere of a debating
society, but in a concrete factual context conducive to a
realistic appreciation of the consequences of judicial action."
Valley Forge, 454 U.S. at 472.
Closely akin to the standing requirement, and indeed not
always clearly separable from it, is the ripeness doctrine. See
Louisiana Envtl. Action Network, 87 F.3d at 1384 (discussing
the overlapping relationship of the "threshold doctrines").
Under that doctrine, an Article III court cannot entertain the
claims of a litigant unless they are "constitutionally and
prudentially ripe." Id. at 1381. Article III does not allow a
litigant to pursue a cause of action to recover for an injury
that is not "certainly impending." National Treasury Em-
ployees Union v. United States, 101 F.3d 1423, 1427 (D.C.
Cir. 1996). Just as the constitutional standing requirement
for Article III jurisdiction bars disputes not involving injury-
in-fact, the ripeness requirement excludes cases not involving
present injury. As the Supreme Court stated in Whitmore v.
Arkansas, 495 U.S. 149, 158 (1990), "[a]llegations of possible
future injury do not satisfy the requirements of Art. III."
Like the standing doctrine, the ripeness requirement dic-
tates that courts go beyond constitutional minima and take
into account prudential concerns which in some cases may
mandate dismissal even if there is not a constitutional bar to
the exercise of our jurisdiction. In deciding whether an
agency's decision is ripe for review, we must examine the
"fitness of the issues for judicial decision" and the "hardship
to the parties of withholding court consideration." Abbott
Labs. v. Gardner, 387 U.S. 136, 149 (1967). The Supreme
Court has elaborated upon these requirements, concluding
that courts must consider "(1) whether delayed review would
cause hardship to the plaintiffs; (2) whether judicial interven-
tion would inappropriately interfere with further administra-
tive action; and (3) whether the courts would benefit from
further factual development of the issues presented." Ohio
Forestry Ass'n, Inc. v. Sierra Club, 118 S. Ct. 1665, 1670
(1998). The "primary focus" of the prudential aspect of the
ripeness doctrine is to balance "the petitioner's interest in
prompt consideration of allegedly unlawful agency action
against the agency's interest in crystallizing its policy before
that policy is subjected to judicial review and the court's
interests in avoiding unnecessary adjudication and in deciding
issues in a concrete setting." Eagle-Picher Indus. v. EPA,
759 F.2d 905, 915 (D.C. Cir. 1985).
Upon applying standing and ripeness analysis, we deter-
mine that WOC's procedural claim crosses the jurisdictional
threshold, but its NEPA claim does not.
A.WOC's NEPA Claim
NEPA requires federal agencies to prepare a detailed EIS
for all "major Federal actions significantly affecting the quali-
ty of the human environment." 42 U.S.C. s 4332(2)(C); see
also Fund for Animals v. Thomas, 127 F.3d 80, 83 (D.C. Cir.
1997). Under the statute, "[t]he EIS must include, among
other things, a 'detailed statement' describing the reasonably
foreseeable environmental impact both of the proposed feder-
al action and of any feasible alternative(s) to the proposed
federal action, including nonaction." City of Grapevine, Tex.
v. DOT, 17 F.3d 1502, 1503 (D.C. Cir. 1994) (quoting 42
U.S.C. s 4332(2)(C)). Under the regulations promulgated by
the Council on Environmental Quality, federal agencies are
responsible for "[d]esignating the major decision points for
the agency's principal programs likely to have a significant
effect on the human environment and assuring that the
NEPA process corresponds with them." 40 C.F.R.
s 1505.1(b). An agency need not conduct a comprehensive
EIS if an "environmental assessment" reveals that the pro-
posed action would not have a significant effect on the
environment. 40 C.F.R. ss 1501.4, 1508.9. Thus, the law
does not require an agency to prepare an EIS until it reaches
the critical stage of a decision which will result in "irrevers-
ible and irretrievable commitments of resources" to an action
that will affect the environment. Mobil Oil Corp. v. FTC, 562
F.2d 170, 173 (2d Cir. 1977). As the Second Circuit stated in
Mobil Oil Corp., "NEPA does not intend that [an agency]
may be indefinitely delayed in undertaking its statutory
duties by controversy over an EIS concerning events which
may never occur." Id. Applying these principles in the
context of leasing, we conclude that WOC has not established
the irreversible and irretrievable commitment of resources
necessary to establish ripeness, whether or not it has estab-
lished the element of injury redressable in this litigation
necessary to establish standing. However viewed, we do not
have jurisdiction.
In Sierra Club v. Peterson, we held that when a federal
agency charged with administering oil and gas leasing on
federal lands has taken such action that it no longer "retain[s]
the authority to preclude all surface disturbing activities"
subsequent to issuing an oil and gas lease, "an EIS assessing
the full environmental consequences of leasing must be pre-
pared" before "commitment to any actions that might affect
the quality of the human environment." 717 F.2d 1409, 1415
(D.C. Cir. 1983). Based on this analysis, we concluded that
"[i]f the [Forest Service] chooses not to retain authority to
preclude all surface disturbing activities," an EIS must be
prepared "when the leases are issued." Id. at 1415; see also
Conner v. Burford, 848 F.2d 1441, 1451 (9th Cir. 1988) ("[U]n-
less surface-disturbing activities may be absolutely precluded,
the government must complete an EIS before it makes an
irretrievable commitment of resources by selling non-NSO
leases."). Concededly, the application of these principles does
not necessarily presuppose that an obligation could not occur
at an earlier stage. However, consistent with the purpose of
NEPA as correctly described by the Second Circuit in Mobil
Oil Corp., it is not logical that the Service would be required
to delay its undertakings and commit its resources to the
preparation of an EIS which might ultimately prove unneces-
sary. Thus, we hold that the point of irreversible and irre-
trievable commitment of resources and the concomitant obli-
gation to fully comply with NEPA do not mature until leases
are issued.
In the instant case, WOC brought its NEPA action before
any leases had actually been issued by the BLM. Therefore,
WOC's NEPA challenge was premature. This does not pre-
clude WOC from obtaining judicial relief should it later
become appropriate. See Louisiana Envtl. Action Network,
87 F.3d at 1381. Indeed, once the leases were issued by the
BLM, WOC was free to challenge the Forest Service's NEPA
compliance. In fact, WOC has raised the NEPA compliance
issue before the IBLA in its administrative protest of the
BLM's offering of three Shoshone leases. However, that
challenge would necessarily be a challenge to the state of the
Forest Service's NEPA compliance at the time of lease
issuance. The record before us is therefore incomplete since
it represents the state of the Forest Service's NEPA compli-
ance at the time the Forest Service rendered its "specific
lands" decision. After that point, the Forest Service was
free to undertake additional efforts to comply with its NEPA
obligations, including efforts to make its EIS sufficiently site-
specific. Until the point of irreversible and irretrievable
commitment of resources had been reached--i.e., the leases
had actually been issued--any challenge to the Forest Ser-
vice's NEPA compliance by WOC or anyone else remained
premature.
In addition to the constitutional restraints of the standing
and ripeness doctrines, prudential considerations also support
our conclusion that WOC's NEPA claim is premature. "Pru-
dence ... restrains courts from hastily intervening into mat-
ters that may best be reviewed at another time or another
setting, especially when the uncertain nature of an issue
might affect a court's 'ability to decide intelligently.' " Loui-
siana Envtl. Action Network, 87 F.3d at 1382 (internal cita-
tions omitted) (quoting American Trucking Ass'ns, Inc. v.
ICC, 747 F.2d 787, 790 (D.C. Cir. 1984)). As the Supreme
Court has noted, premature review " 'denies the agency an
opportunity to correct its own mistakes and to apply its
expertise.' " Ohio Forestry, 118 S. Ct. at 1671 (quoting
Federal Trade Comm'n v. Standard Oil Co., 449 U.S. 232, 242
(1980)). The ripeness requirement is designed
to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract dis-
agreements over administrative policies, and also to pro-
tect the agencies from judicial interference until an ad-
ministrative decision has been formalized and its effects
felt in a concrete way by the challenging parties.
Abbott Labs., 387 U.S. at 148-49; see also National Treasury
Employees Union, 101 F.3d at 1431 ("Prudentially, the ripe-
ness doctrine exists to prevent the courts from wasting our
resources by prematurely entangling ourselves in abstract
disagreements...."); New York State Opthalmalogical Soc'y
v. Bowen, 854 F.2d 1379, 1386 (D.C. Cir. 1988) ("A controver-
sy is ripe if further administrative process will not aid in the
development of facts needed by the court to decide the
question it is asked to consider.").
Review of WOC's NEPA claim based on the record as it
existed at the "specific lands" stage would not only violate the
constitutional limitations on this Court's jurisdiction under
Article III, but also would affect this Court's "ability to
decide intelligently" whether the Forest Service met its
NEPA obligations. WOC's NEPA claim is not "fit[ ] ... for
judicial decision" as contemplated in Abbott Laboratories.
387 U.S. at 149. As the Supreme Court noted in Ohio
Forestry, a claim is not ripe where the "possibility that
further consideration will actually occur before [implementa-
tion] is not theoretical, but real." 118 S. Ct. at 1671. The
Forest Service was free to engage in further efforts to fulfill
its NEPA obligations before the leases were issued. Indeed,
the verification process established by the Forest Service
specifically contemplated further action on this front. There-
fore, it is clear that WOC's NEPA compliance claim could not
possibly be in a "concrete and final form," Eagle-Picher, 759
F.2d at 915, until the lease issuance stage, at which time it
became ripe for review.
Moreover, under the second prong of the Abbott Laborato-
ries test, withholding consideration of the NEPA claim at this
stage in the proceedings will not result in any "hardship" to
the parties. See 387 U.S. at 149. There is no "hardship"
here since WOC may pursue its NEPA claim based on the
Forest Service's compliance as of the date of lease issuance,
and, indeed, it appears that it has done so before the IBLA.
As a result, we must dismiss WOC's NEPA claim for lack of
jurisdiction.
B.WOC's Procedural Claim
In contrast, we conclude that we may exercise jurisdiction
over WOC's procedural claim alleging that the Forest Service
violated its own regulations. We first conclude that WOC has
standing to bring its procedural claim. See Lujan, 504 U.S.
at 561; Animal Legal Defense Fund, Inc. v. Glickman, 154
F.3d 426, 431-32 (D.C. Cir. 1998) (in banc); Florida Audubon
Soc'y v. Bentsen, 94 F.3d 658, 664-65 (D.C. Cir. 1996). While
it is true for the reasons set forth above that there is no
certainty that drilling will commence on the disputed lands,
the procedural barrier which WOC alleges to have been
breached no longer stands in the way. The land of concern is
in genuine danger, though potentially shielded by the NEPA
considerations which we have already held are not before us.
Where the agency acting in obedience to its congressional
mandate has erected that procedural barrier, and where the
leasing process has reached the stage evidenced in this case,
we hold that the impending threat of injury is sufficiently real
to constitute injury-in-fact and afford constitutional standing
to adjudicate the claimed procedural irregularity. Cf. Whit-
more, 495 U.S. at 158.
As the Supreme Court has stated, " 'procedural rights' are
special." Lujan, 504 U.S. at 572 n.7. That is, "[t]he person
who has been accorded a procedural right to protect his
concrete interests can assert that right without meeting all
the normal standards for redressability and immediacy." Id.
This does not mean--nor could it--that the plaintiff asserting
the breach of a procedural right is not required to establish
the constitutional minima of injury-in-fact, causation, and
redressability. It only means that the necessary showing to
support those minima is reduced. That is, in cases involving
alleged procedural errors, "the plaintiff must show that the
government act performed without the procedure in question
will cause a distinct risk to a particularized interest of the
plaintiff." Florida Audubon, 94 F.3d at 664. This WOC has
shown.
Therefore, we conclude that WOC's procedural claim is
ripe. Unlike its NEPA claim, WOC's procedural claim has
become "concrete and final," Eagle-Picher, 759 F.2d at 915,
since there no longer exists the possibility that further agency
action will alter the claim in any fashion. While the Forest
Service may undertake further efforts to comply with NEPA,
it has completely and finally implemented its procedures
under 36 C.F.R. s 228.102(e). As the Supreme Court noted
in Ohio Forestry, "a person with standing who is injured by a
failure to comply with [some procedural requirement] may
complain of that failure at the time the failure takes place, for
the claim can never get riper." 118 S. Ct. at 1672; see also
Action for Children's Television v. FCC, 59 F.3d 1249, 1258
(D.C. Cir. 1995) (concluding that First Amendment challenge
was ripe where there was "little or nothing more that the
agency could do in a particular adjudication that would likely
inform the court's decision on the question whether the
enforcement scheme is currently being, or is capable of being,
administered in accordance with the first amendment"). In
this case, WOC's claim that the Forest Service procedures
violate its own regulations "can never get riper." The Forest
Service has implemented the procedures that WOC asserts
are inconsistent with 36 C.F.R. s 228.102(e). Therefore, no
further actions will be taken by the Forest Service that may
be relevant to WOC's claim that the Forest Service violated
its own regulations. As a result, WOC's procedural claim
under 36 C.F.R. s 228.102(e) is ripe for review, and we may
proceed to the merits.
III. The Merits of the Procedural Claim
The heart of WOC's procedural claim is that the "subject
to" language of s 228.102(e) imposes a requirement concern-
ing the timing of the three findings mandated under the
regulation, which the Forest Service has ignored. Relying
upon both the text of the regulation itself and statements in
the preamble, WOC asserts that the Forest Service must
make the three required findings before the BLM identifies
specific parcels for leasing. In contrast, the Forest Service
argues that the regulation imposes no such temporal require-
ment and that it is free to make the required findings after
the BLM has identified specific parcels, as long as it does so
before any leases are actually issued. Both WOC and the
Forest Service have presented credible arguments indicating
that the regulation is susceptible to either interpretation.
Confronted with strong arguments on both sides and having
determined that the regulation is ambiguous on its face, we
must defer to the Forest Service's interpretation of its own
regulations.
An agency's interpretation of its own regulations is entitled
to substantial deference. Thomas Jefferson Univ. v. Shalala,
512 U.S. 504, 512 (1994); National Trust for Historic Preser-
vation v. Dole, 828 F.2d 776, 782 (D.C. Cir. 1987). Our
review in such cases is "more deferential ... than that
afforded under Chevron." National Medical Enter. v. Shala-
la, 43 F.3d 691, 697 (D.C. Cir. 1995). The agency's construc-
tion of its own regulation is controlling "unless it is plainly
erroneous or inconsistent with the regulation." United States
v. Larionoff, 431 U.S. 864, 872 (1977) (quoting Bowles v.
Seminole Rock Co., 325 U.S. 410, 414 (1945)); see also
Thomas Jefferson, 512 U.S. at 512; CSX Transp., Inc. v.
STB, 75 F.3d 696, 702 (D.C. Cir. 1996). That "broad defer-
ence is all the more warranted when ... the regulation
concerns 'a complex and highly technical regulatory pro-
gram.' " Thomas Jefferson, 512 U.S. at 512 (quoting Pauley
v. Beth Energy Mines, Inc., 501 U.S. 680, 697 (1991)).
A court need not find that the agency's construction is the
only possible one, or even the one that the court would have
adopted in the first instance. Belco Petroleum Corp. v.
FERC, 589 F.2d 680, 685 (D.C. Cir. 1978); Cold Springs
Granite Co. v. Federal Mine Safety and Health Review
Comm'n, 98 F.3d 1376, 1378 (D.C. Cir. 1996) ("The Secre-
tary's plausible and sensible reading of his own regulation
would prevail even if the company had presented an equally
plausible alternative construction, which it has not."). So
long as an agency's interpretation of ambiguous regulatory
language is reasonable, it should be given effect. See Martin
v. Occupational Safety & Health Review Comm'n, 499 U.S.
144, 150 (1991). Thus, "in a competition between possible
meanings of a regulation, the agency's choice receives sub-
stantial deference." Rollins Envtl. Servs. (NJ) Inc. v. EPA,
937 F.2d 649, 652 (D.C. Cir. 1991).
WOC argues that the Forest Service's interpretation of its
oil and gas leasing regulations is contrary to the plain lan-
guage of the regulatory text because it allows the Forest
Service to authorize leasing of specific lands without first
making the three findings required under 36 C.F.R.
s 228.102(e). WOC relies on the language of 36 C.F.R.
s 228.102(e), which states that "[a]t such time as specific
lands are being considered for leasing," the Forest Service
shall authorize the BLM to offer specific lands for lease
"subject to" the requirements enumerated in the regulation.
WOC interprets the "subject to" language as meaning that
the requirements laid out in the regulation must be met
before authorization is given. It further argues that the
Forest Service's interpretation cannot be correct because the
regulation provides for additional NEPA compliance "before a
leasing decision for specific lands will be made." Id. (empha-
sis added). Finally, WOC argues that the preamble of the
regulations is evidence of the Forest Service's contemporane-
ous intent. WOC notes that the preamble states that the
Forest Service "will make a decision as to whether to autho-
rize" leasing "[o]nce a conclusion is made with respect to each
of the three required determinations" and that "[t]he only
lease(s) that the Bureau of Land Management shall be autho-
rized to offer are those for which the Forest Service has
[made the required findings]." 55 Fed. Reg. 10,423, 10,430
(Mar. 21, 1990). WOC further observes that the preamble
indicates that specific "tracts" will be identified before autho-
rization is given, stating: "When those tracts are identified,
the Forest Service will decide whether to authorize the
Bureau of Land Management to offer the lease(s)." Id. at
10,429.
WOC is correct that the regulation at issue is ambiguous.
Clearly it is subject to an interpretation different than that
offered by the Forest Service. But WOC has not established
that the Forest Service's interpretation of its own regulation
is "plainly erroneous." The regulation states that the "specif-
ic lands" decision is "subject to" three requirements. While
the most natural reading of the "subject to" phrase may be
that the three requirements will be met before the "specific
lands" decision is made, the alternative reading--that the
three requirements may be verified after the "specific lands"
decision is made, but before the decision is implemented and
leases for specific parcels are approved--is not "plainly erro-
neous." The "subject to" phrase does not necessarily indicate
when the required determinations will be made. The lan-
guage of the regulation therefore is consistent with an inter-
pretation under which the verification process follows a deter-
mination to authorize the BLM to offer specific lands for
leasing.
Similarly, the surrounding regulatory text does not indicate
that the Forest Service's construction is plainly erroneous.
The regulation states that any additional environmental anal-
ysis shall be conducted "before a leasing decision for specific
lands will be made." 36 C.F.R. s 228.102(e)(1). This lan-
guage may be interpreted as dictating that additional environ-
mental analysis occur before (1) the Forest Service authorizes
the BLM to identify specific parcels for leasing (as WOC
contends) or (2) the Forest Service consents to the sale of
leases after completing its "verification" procedures (as the
Forest Service contends). Although WOC's interpretation
may be the most reasonable, and indeed may even be the
interpretation this Court would adopt were it reviewing the
regulation de novo, it is not the only reasonable interpretation
available. Consequently, we cannot invalidate the procedures
established by the Forest Service since they are consistent
with one of the reasonable interpretations flowing from the
admittedly ambiguous regulatory text.
WOC's appeal to the language in the preamble of the
regulation is equally unavailing. While language in the
preamble of a regulation is not controlling over the language
of the regulation itself, Jurgenson v. Fairfax County, Va., 745
F.2d 868, 885 (4th Cir. 1984), we have often recognized that
the preamble to a regulation is evidence of an agency's
contemporaneous understanding of its proposed rules. See,
e.g., Chemical Mfrs. Ass'n v. DOT, 105 F.3d 702, 708 (D.C.
Cir. 1997); Booker v. Edwards, 99 F.3d 1165, 1168 (D.C. Cir.
1996). Indeed, in the analogous context of statutory con-
struction, we have noted that, although the language in the
preamble of a statute is "not an operative part of the statute,"
it may aid in achieving a "general understanding" of the
statute:
[The] preamble no doubt contributes to a general under-
standing of a statute, but it is not an operative part of
the statute and it does not enlarge or confer powers on
administrative agencies or officers. Where the enacting
or operative parts of a statute are unambiguous, the
meaning of the statute cannot be controlled by the
language in the preamble. The operative provisions of
statutes are those which prescribe rights and duties and
otherwise declare the legislative will.
Association of Am. Railroads v. Costle, 562 F.2d 1310, 1316
(D.C. Cir. 1977). The principles governing interpretation of
the preamble of a regulation are no different. Although the
preamble does not "control" the meaning of the regulation, it
may serve as a source of evidence concerning contemporane-
ous agency intent.
The preamble language at issue here is as ambiguous as
the regulatory text. For example, the preamble states that
the "decision as to whether to authorize the [BLM] to offer
lease(s) for the specified [NFS] lands" will be made "[o]nce a
conclusion is made with respect to each of the three required
determinations." 55 Fed. Reg. 10,423, 10,430 (Mar. 21, 1990).
On its face, this language seems to indicate that the three
factual determinations specified in 36 C.F.R. s 228.102(e)
must be made at the time the "specific lands" decision is
made, and not after. Nevertheless, this passage can also be
read as stating that the three factual determinations will be
made before the Forest Service gives its consent to issuing
leases for specific parcels of land. The term "lands" as used
in this passage is ambiguous. At times, the preamble uses it
to refer generally to the lands under review during the
leasing analysis stage. At other times, however, the pream-
ble uses this phrase to refer to the specific parcels for which
leases are issued by the BLM. Generally, when the Forest
Service intends to convey this latter meaning, it couples the
term "lands" with the modifier "specified." Thus, in the
above passage, the phrase "specified [NFS] lands" can be
read as referring to specific parcels. Under this interpreta-
tion, the passage merely states that the three factual determi-
nations will be made by the Forest Service before it consents
to the BLM's issuance of any leases on specific parcels. The
verification procedure followed by the Forest Service is there-
fore consistent with this interpretation of the preamble lan-
guage. The other passages cited by WOC are similarly
ambiguous and susceptible to an interpretation consistent
with the Forest Service procedures.
In sum, we agree with the district court's conclusion that
WOC has "presented a reasonable alternative reading of" the
regulations at issue. Wyoming Outdoor Council, 981
F. Supp. at 19. Nonetheless, we also conclude, as did the
district court, that the agency's interpretation is not "at odds
with either the overall structure or the specific language of
the regulation." Id. Therefore, given the deference normal-
ly accorded such agency interpretations, we must uphold the
Forest Service's reading of its admittedly ambiguous regula-
tions.
IV. Conclusion
Having concluded that the Forest Service's interpretation
of its own regulations is not plainly erroneous, we affirm the
judgment of the district court upholding the Forest Service's
leasing decision and dismiss WOC's NEPA claim for lack of
jurisdiction.