Supreme Court Excludes Public Comment, Appeal of Small Timber Sales

In a 5-4 decision, the court found that the groups had not shown that they had "standing," to mount a legal challenge to the exemption since the 2003 timber sale originally at issue in the case had been withdrawn by the Forest Service.

But the court rejected the Bush administration's attempt to create a broader ruling that would have severely limited citizens' right to challenge any unlawful government regulation.

"We are disappointed that the court reinstated these harmful forest regulations," said Matt Kenna, the Western Environmental Law Center attorney who argued the case before the Supreme Court.

"However, the court's ruling was narrow in scope and did not accept any of the government's broad theories that would have precluded citizens from challenging a federal regulation except when applied to a specific project. This was the most critical issue at stake," Kenna said.

"If the government had prevailed on its theory, citizens would have had to file thousands of individual suits to challenge harmful regulations on a case-by-case basis while the government could continue to apply the regulation even in the face of multiple court rulings finding the regulation unlawful," he explained.

The McNally fire on its first day, July 21, 2002 (Photo courtesy U.S. Forest Service)

In the summer of 2002, the McNally Fire, the largest wildfire in the history of California's Sequoia National Forest, burned for six weeks in July and August.

In September 2003, the Forest Service issued a decision memo approving the Burnt Ridge Project, a salvage sale of timber on 238 acres damaged by that fire.

Pursuant to its categorical exclusion of salvage sales of less than 250 acres, the Forest Service did not provide notice in a form consistent with the Appeals Reform Act, did not provide a period of public comment, and did not make an appeal process available to the public.

The five groups - Earth Island Institute, Heartwood, Sierra Club, Sierra ForestKeeper, and Center for Biological Diversity - sued the federal government in a case that came to be known as Summers v. Earth Island Institute.

The conservation groups were initially successful in their challenge to the categorical exclusion issued in 2003 that eliminated the public's ability to comment on and appeal U.S. Forest Service actions such as commercial timber sales, oil and gas development and off-road motorized vehicle use.

The District Court for the Eastern District of California granted a preliminary injunction against the sale, and the parties then settled their dispute as to Burnt Ridge. The timber sale originally at issue in the case was withdrawn by the Forest Service in response to the injunction.

Although concluding that the Burnt Ridge sale was no longer at issue, and despite the government's argument that the groups therefore lacked standing to challenge the regulations, the lower court adjudicated the merits of their challenges, invalidating several regulations, including the notice and comment and the appeal provisions.

The District Court's ruling was upheld by the Ninth Circuit Court of Appeal.

But today a majority of the Supreme Court justices, in an opinion written by Justice Antonin Scalia, ruled that the conservation groups "lack standing to challenge the regulations still at issue absent a live dispute over a concrete application of those regulations."

Leading a four-member dissent, Justice Stephen Breyer wrote that it was absurd to find, as Justice Scalia did, that the Sierra Club and the other conservation groups were not being harmed by the challenged regulation in other timber sales and other Forest Service actions.

The ruling means that the Bush administration's regulations excluding the public from comment on and appeal of U.S. Forest Service actions are reinstated.

However, says Kenna, given the limited nature of the Supreme Court's ruling, the regulation can again be challenged.

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