Red Lodge Clearinghouse

The underlying Summers v. Earth Island Institute lawsuit involves a plank of President Bush's Healthy Forests Initiative, but potentially at stake is the ability to file facial challenges to federal laws.

"The government is saying rules as a whole can't be facially challenged. You have to do it case by case," said Matt Kenna, attorney for the Western Environmental Law Center. "That would mean a lot more litigation actually, but it would also insulate the government from judical review for a large part."

Kenna represents five environmental groups who challenged 2003 Forest Service rules that limited appeals and public comment on categorical exclusions of salvage logging and other projects.

In its request for a writ of certiorari, the Justice Department argued that with some exceptions, an agency regulation is not an independently reviewable final action, even if the agency applies the regulation in the course of making a site-specific decision. "Rather, the agency action that is the proper focus of judicial review is the site-specific decision in which the regulation has been applied in a concrete context," DOJ wrote.

"The plaintiff in challenging the site-specific decision may assert that the regulation is contrary to the governing statute or is otherwise unlawful," DOJ said. "But the agency action that the court ultimately upholds or sets aside is the site-specific decision rather than the regulation as such."

The Summers v. Earth Island Institute case, formerly Earth Island Institute v. Ruthenbeck, centers around Forest Service rules adopted in 2003 that included a provision to allow only individuals and organizations that submit "substantive" written or oral comments during public comment periods the ability to file administrative appeals. Previously, any citizen could file an appeal within 45 days of a Forest Service decision.

In 2005, Judge James Singleton of the U.S. District Court in Alaska sided with environmental groups and issued a nationwide injunction against the Forest Service, and the 9th U.S. Circuit Court of Appeals upheld the injunction in 2006.

2003 logging decision at issue

Earth Island Institute, Sequoia Forestkeeper, Heartwood, Center for Biological Diversity and Sierra Club filed their lawsuit after the Forest Service issued a decision in September 2003 to allow salvage logging of 238 acres in the Sequoia National Forest that had been burned in the McNally fire the previous summer. The Burnt Springs sale was one of the first the agency approved under the "categorical exclusion" rules.

DOJ argues that since the lawsuit in question challenged a regulation governing administrative actions, the plaintiffs must wait until a final decision is made on a specific project.

"In the context of this case, for example, the Forest Service's approval of a particular project might be entirely acceptable to respondents, or they might conclude that an administrative appeal, even if available, would not be worthwhile," DOJ wrote.

In addition, the administration says the 9th Circuit erred by allowing Singleton to issue a nationwide injunction against the Forest Service.

"The 9th Circuit's decision authorizes a single district judge in a garden-variety ... suit to exercise the same broad power to vacate in their entirety agency regulations that Congress only rarely confers upon the District of Columbia Circuit," DOJ wrote in its petition.

Environmental groups have had success in recent years with district judges in the 9th Circuit, where judges are seen as more liberal and likely to block regulations that limit public input or access. In recent years, 9th Circuit judges have been at the center of the battle over environmental regulations, issuing rulings reinstating the Clinton-era roadless rule and enjoining the Forest Service's national planning rule, among others.

Forest Service spokesman Joe Walsh said the agency is pleased the Supreme Court has agreed to hear the case.

The court did not set a timeline for additional briefs in the case. Oral arguments are not likely until April at the earliest and could slip all the way to October, Kenna said.

Click here to view DOJ's petition for cert.

Click here to view the environmentalists' reply brief.

Click here to view DOJ's reply brief.

Click here to view the 9th Circuit's ruling.

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