United States Court of Appeals,
Eleventh Circuit.
No. 94-9369.
WILDERNESS SOCIETY, et al., Plaintiffs-Appellants,
v.
John E. ALCOCK, as Regional Forester of the Southern Region of
the U.S. Forest Service, et al., Defendants-Appellees.
May 22, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-cv-1040-ODE), Orinda D. Evans,
Judge.
Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior
Circuit Judge.
TJOFLAT, Chief Judge:
On May 1, 1992, several environmental groups filed a complaint
in the district court against the Secretary of Agriculture and
officials of the United States Forest Service, 1 seeking review of
the 1986 Final Land and Resource Management Plan (the "Plan") for
the Cherokee National Forest. These groups alleged that the Plan
violates the National Forest Management Act, 16 U.S.C. §§ 1600 et
seq. (1994) ("NFMA"), and the regulations promulgated thereunder,
see 36 C.F.R. part 219 (1995). On cross motions for summary
judgment, the district court found that the environmental groups
lacked standing to bring a challenge to the Plan, and, further,
that they did not present a ripe controversy. The court therefore
granted summary judgment in favor of appellees. We affirm.
1
In September of 1992, a group of timber companies sought to
intervene as defendants in this action. The district court
granted them permissive intervention under Fed.R.Civ.P. 24(b) in
October of 1992. Hereafter, "appellees" will refer to all
defendants in the court below.
I.
Section 1604(a) of the NFMA directs the Secretary of
Agriculture to "develop, maintain, and, as appropriate, revise land
and resource management plans ["LRMPs"] for units of the National
Forest System." 16 U.S.C. § 1604(a).2 Each LRMP is to "guide all
natural resource management activities and establish management
standards and guidelines for the National Forest System. [LRMPs]
determine resource management practices, levels of resource
production and management, and the availability and suitability of
lands for resource management." 36 C.F.R. § 219.1(b). In
developing a LRMP, the Secretary must consider: compliance with
the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-
4370d (1994) ("NEPA"),3 see 16 U.S.C. § 1604(g)(1); the diversity
of the plant and animal species in the forest, see 16 U.S.C. §
1604(g)(3)(B); the suitability of lands within the forest for
resource management, see 16 U.S.C. § 1604(g)(2)(A); the special
circumstances of the forest (e.g., the soil quality or available
water resources) that might affect the methods used to harvest
renewable resources and the amount of renewable resources that can
be harvested, see 16 U.S.C. § 1604(g)(3)(C)-(F); and the "economic
and environmental aspects of various systems of renewable resource
2
The Secretary does not personally develop LRMPs. LRMPs are
prepared by the Forest Service under the direction of the
regional forester, the person responsible for the administration
of the forests within a region.
3
The NEPA requires that an environmental impact statement be
prepared for "every recommendation or report on proposals for
legislation and other major Federal actions significantly
affecting the quality of the human environment." 42 U.S.C. §
4332(2)(C).
management, including the ... protection of forest resources, to
provide for outdoor recreation (including wilderness), range,
timber, watershed, wildlife, and fish," see 16 U.S.C. §
1604(g)(3)(A).
In January of 1986, after several years of preparation, a
proposed LRMP for the Cherokee National Forest was circulated for
public comment. The Forest Service received comments on the
proposal and made changes in response to those comments. The Plan
was adopted by the regional forester in April 1986.
Appellants exhausted their administrative appeals,4 and now
seek judicial review of the Plan as a final agency action within
the meaning of the Administrative Procedure Act ("APA"), 5 U.S.C.
§ 702 (1994).5 The complaint the appellants presented to the
4
The NFMA and its regulations provide for extensive
administrative review of a challenge to a LRMP. Since a LRMP is
a decision of the regional forester, a challenge to a plan is
appealed to the Chief of the Forestry Service. See 36 C.F.R. §
211.18(f)(1)(iii). The Chief responds to the challenge in a
written decision. This decision is sent automatically to the
Secretary of Agriculture, see 36 C.F.R. § 211.18(f)(2), who has
discretion to review the Chief's decision. In this case, the
Secretary declined to review the Chief's decision affirming the
regional forester's adoption of the Plan.
5
A federal statute provides that "[i]f the Secretary fails
to decide the appeal [of a decision of the Forest Service] ...,
the decision on which the appeal is based shall be deemed to be a
final agency action for the purpose of [the Administrative
Procedure Act]." Department of the Interior and Related Agencies
Appropriations Act, 1993, Pub.L. No. 102-381, § 322(d)(4), 106
Stat. 1374, 1419 (1992) (16 U.S.C. § 1612 note).
The APA gives "[a] person suffering legal wrong because
of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute" a
right to judicial review of that agency action. 5 U.S.C. §
702. Agency action is subject to judicial review only if it
is "final agency action" or "[a]gency action made reviewable
by statute." 5 U.S.C. § 704. Since the NFMA does not
provide for judicial review of agency actions taken pursuant
district court alleges that several of the decisions made in the
Plan violate the NFMA and its regulations as follows: (1) the Plan
designates too much land in the Forest as suitable for timber
production; (2) the Plan fails to take into account the
possibility that the costs incurred by the Forest Service will
exceed the revenues the Service receives from the timber companies;
(3) the Plan sets an "arbitrarily high" timber harvest level for
the fifth decade of the Plan; (4) the Plan fails to follow the
directives of the Secretary of Agriculture's "San Juan" decision;6
(5) the Plan makes "arbitrary and capricious" assumptions about
future timber harvest levels and future timber prices; (6) the
Plan fails to provide for animal and plant species diversity as
required by the NFMA; (7) in formulating the Plan, the Service
failed to conduct species inventories as required by the NFMA; and
(8) the Plan fails to protect the Forest's visual resources as
to the Act, we have jurisdiction over a challenge under the
NFMA only if the agency action is final.
6
The "San Juan" decision resolved administrative appeals of
two separate LRMPs, and addressed the justifications needed in a
LRMP when it proposes to expand a timber program in which costs
to the Forest Service will exceed the revenues generated by the
program. See "Decision on Review of Administrative Decision by
the Chief of the Forest Service Related to the Administrative
Appeals of the Forest Plans and EISs for the San Juan National
Forest and the Grand Mesa Uncompahgre, and Gunnison National
Forest" (Dep't Agriculture, July 31, 1985) (described at 53
Fed.Reg. 26621 (1988)). Appellants argue that the application of
the San Juan decision to the Plan should be left to the district
court once we have found that appellants have standing to
challenge the Plan. Appellees contend that the San Juan decision
is not judicially enforceable. We do not address these
assertions, since we hold infra that appellants' challenges to
the Plan are not ripe for judicial review.
required by the NFMA.7
Appellants seek a declaratory judgment that the Plan and the
final environmental impact statement that accompanied the Plan
violate the NFMA in the manner specified above. Assuming that the
Plan and the impact statement are invalid, they ask that the
district court remand the Plan to the Forest Service so that the
Service can comply with the NFMA and its regulations.
After the parties joined issue, both sides moved for summary
judgment. Appellees' motion replicated the assertion contained in
its answer that the environmental groups lack standing to bring the
claims at issue, and, moreover, that such claims are not ripe for
judicial resolution. Appellees' motion alleged alternatively that
the decisions made in the Plan comply with the NFMA and its
regulations.
The district court noted the split of authority in the courts
of appeals on whether claims such as the ones appellants present
are justiciable; that is, whether such claims are ripe for
judicial review, and, if so, whether any person has standing to
bring them. The Seventh and the Ninth Circuits have held the
justiciability requirements to be satisfied in cases similar to the
7
Appellants' complaint consists of thirteen counts; many of
the allegations recited above constitute separate counts. In
addition to these allegations, the complaint asserts that the
regulations promulgated by the Secretary for determining the
forest land's economic suitability for timber production, see 36
C.F.R. § 219.14, violate the NFMA's requirement that the
identification of economically unsuitable lands be based on an
objective standard or rule of reason. See 16 U.S.C. § 1604(k).
Although the district court did not specifically address
appellants' standing to bring this claim, we read its order as
determining that appellants lack standing to litigate this claim.
Appellants do not appeal the district court's disposition of this
claim; accordingly, we do not address it.
one here. See Sierra Club v. Marita, 46 F.3d 606 (7th Cir.1995);
Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir.1992).
The Eighth Circuit, however, has found that environmental-group
plaintiffs lacked standing to bring a challenge similar to the one
in this case. See Sierra Club v. Robertson, 28 F.3d 753 (8th
Cir.1994). That court did not address the question whether the
challenge presented was ripe for judicial review.
Finding the reasoning of the Eighth Circuit in Robertson
persuasive, the district court held that the injury alleged by
appellants was not imminent. Thus, appellants could not "have
suffered an "injury in fact'—an invasion of a legally-protected
interest which is (a) concrete and particularized ... and (b)
"actual or imminent, not "conjectural" or "hypothetical." ' "
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130,
2136, 119 L.Ed.2d 351 (1992) (citations omitted). Without such an
injury, the district court held, appellants did not have standing
to pursue their claims.
Because the appellants' injury was not imminent, the court
also held that their claims were not ripe for judicial review.
Further, the court found that dismissal of the action would cause
little or no hardship to appellants. Determining that the
appellants did not have standing to bring their claims, and that
their claims were not ripe, the district court granted the
appellees' motion for summary judgment.
II.
We review the district court's grant of summary judgment de
novo, applying the same legal standards that bound the district
court. See Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374,
1377 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 729,
130 L.Ed.2d 633 (1995). In making this determination, we view all
evidence in the light most favorable to the non-moving party. See
Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir.1992). Summary
judgment is appropriate in cases in which there is no genuine issue
of material fact. See Fed.R.Civ.P. 56(c).
In this case, the district court examined the appellants'
claimed injuries through the lens of the standing doctrine as well
as through the lens of the ripeness doctrine. Few courts draw
meaningful distinctions between the two doctrines; hence, this
aspect of justiciability is one of the most confused areas of the
law. Because we find the framework of the ripeness doctrine more
useful when evaluating injuries that have not yet occurred, such as
those claimed by appellants here, we affirm the district court on
that basis.
The confusion in the law of standing and ripeness is hardly
surprising. Both doctrines focus initially on the injury to the
person bringing the action. The Supreme Court has stated that the
"injury in fact" prong of standing requires an injury that is both
"concrete and particularized" and "actual or imminent." Defenders
of Wildlife, 504 U.S. at 560, 112 S.Ct. at 2136. Similarly, for
the controversy to be ripe, the complained-of injury must be
immediate or imminently threatened. There is an important
distinction between the two doctrines, however. When determining
standing, a court asks whether these persons are the proper parties
to bring the suit, thus focusing on the qualitative sufficiency of
the injury and whether the complainant has personally suffered the
harm. See Erwin Chemerinsky, Federal Jurisdiction § 2.4.1 (1989).
When determining ripeness, a court asks whether this is the correct
time for the complainant to bring the action. See id. In the
instant case, the timing of the suit, rather than the propriety of
appellants as plaintiffs, causes justiciability problems.
The ripeness doctrine "prevent[s] the courts, through
avoidance of premature adjudication, from entangling themselves in
abstract disagreements over administrative policies" as well as
"protect[s] the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in
a concrete way by the challenging parties." Abbott Lab. v.
Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681
(1967). A case is not " "ripe' for judicial review under the APA
until the scope of the controversy has been reduced to more
manageable proportions, and its factual components fleshed out, by
some concrete action applying the regulation to the claimant's
situation in a fashion that harms or threatens to harm him." Lujan
v. National Wildlife Fed'n, 497 U.S. 871, 891, 110 S.Ct. 3177,
3190, 111 L.Ed.2d 695 (1990). In deciding whether an issue is
ripe, a court must "evaluate both the fitness of the issues for
judicial decision and the hardship to the parties of withholding
court consideration." Abbott Lab., 387 U.S. at 149, 87 S.Ct. at
1515.
Appellants argue that the decisions made in the Plan are
couched in language that makes mandatory further site-specific
action. Appellees respond that the Plan is not the final arbiter
of any on-the-ground actions. They contend that there is another
level of decisionmaking that determines precisely what
site-specific action will be taken pursuant to the Plan. Thus,
appellees assert, the Plan only sets timber harvest goals and
possible future timber harvest levels; no harvesting will be done
and, therefore, no "injury" can occur, until after the second-stage
decisions are made.
We are persuaded by appellees' contention that no
site-specific action will be taken pursuant to the Plan without a
second stage of decisionmaking; "subsequent discretionary actions
require separate and independent decisionmaking" before any
site-specific action will occur. National Wildlife Fed'n, 497 U.S.
at 892 n. 3, 110 S.Ct. at 3190 n. 3. Appellees concede that
appellants can challenge both the site-specific action as well as
the Plan-level decision(s) underlying the specific action at the
second stage.8 Our opinion is dependent on that concession. Until
such actions have been proposed, however, there is no controversy
for us to resolve. We have no doubt that some decisions in the
Plan make an injury to the appellants more likely. "More likely,"
however, does not make the injury imminent enough for purposes of
judicial decisionmaking. We do not yet know when or how an injury
to the appellants will occur, and this factual underpinning is
8
As the district court stated, "[This] court's determination
that Plaintiffs lack standing at this time to assert their claims
made herein is ipso facto a determination that at such time as
the Plan is implemented in a specific way, it will not be too
late to complain." Wilderness Soc'y v. Alcock, 867 F.Supp. 1026,
1041 (N.D.Ga.1994).
vital to a full-fledged judicial review of the Plan.9 Thus, until
a site-specific action has been proposed, appellant's claimed
injury is not ripe for judicial review. See, e.g., Region 8 Forest
Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 808 (11th
Cir.1993) (finding that timber companies do not have standing to
challenge an amendment to a LRMP because the claimed injury would
be affected by future site-specific analyses).
AFFIRMED.
9
Appellants assert in their briefs (and maintained at oral
argument) that timber is currently being harvested in the Forest
on lands and in ways that violate the NFMA. Appellants did not,
however, amend their complaint to include challenges to any
site-specific action, and thus, for the purposes of this appeal,
we presume that no site-specific action has occurred.