On the bench for respondents: Lujan v. NWF author, arguer

It has to be a little daunting to stand before a Supreme Court that includes both the author of crucial precedent in your case and the attorney — now the Chief Justice — who argued and won that same case.

It has to be a little daunting to stand before a Supreme Court that includes both the author of crucial precedent in your case and the attorney — now the Chief Justice — who argued and won that same case.

That’s where attorney Matt Kenna found himself Oct. 8, as he made his points before Justice Antonin Scalia, author of the court’s opinion in Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990), and Chief Justice John Roberts, who 18 years before had represented the government from Kenna’s spot on the floor.

The resultant 5-4 ruling concluded NWF could not challenge the nationwide application of BLM’s land withdrawal review program in one lawsuit, but must use a case-by-case  approach. As in Kenna’s case, Summers v. Earth Island Institute (07-463),in Lujan NWF had two affidavits, which Justice Scalia said did not clearly demonstrate harm.

Roberts and Scalia both sparred with Kenna about the meaning of Lujan v. NWF.

Roberts told Kenna that “the biggest hurdle you face” is Lujan’s holding that “agency action is not ordinarily considered ‘ripe’ for judicial review under the APA until the scope of the controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to harm the complainant”

Kenna responded by saying “that needs to be read in combination with Footnote 2 to that decision,” which he characterized as saying “if you have a particular regulation applied to a . . . category of circumstances across the board, of course you may challenge it.”

Scalia disagreed. “Is that all it says? No, I think it speaks of categories across the board that . . . immediately, concretely affect the person complaining of the regulation.”

A law clerk was sent to get the decision, and Roberts read from Footnote 2 shortly thereafter.

“It refers, as you say, to a particular measure that applies across the board to all individual classifications. It goes on to say, which is final, ‘and has become ripe for review in the manner we discussed in the text.’ Then we say, or Justice Scalia says, ‘it can of course be challenged under the APA by a person adversely affected — and the entire ‘land withdrawal review program’ ” insofar as the content of that particular action is concerned, would thereby be affected. But that is quite different from permitting a generic challenge to all aspects of the program as though that itself constituted a final agency action.”

“So you still have to become ripe for review in the manner discussed, which was the sentence that I read to you earlier, and the challenge can only be brought by a person adversely affected,” Roberts said. “I don’t see how Footnote 2 undermines the sentence I have read to you at all.”

Kenna responded: “In that footnote, it’s saying it’s quite different from permitting a generic challenge to all aspects of the land-withdrawal review program. And I think that was the problem in Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998)] where you had this broad program left with facts to sort through and apply, but the opinion in Ohio Forestry said, of course, though, if the plan had cut out someone’s right to object to trees being cut, that would be the kind of action that would be challengeable.”

The Forest Service rule at issue was published in June 2003. It exempted a wide range of projects — timber sales up to 250 acres, forest thinning up to 1,000 acres, and prescribed burns as large as 4,500 acres — from the ARA notice, comment and appeal procedures. (ARA stands for Forest Service Decisionmaking and Appeals Reform Act.)

The plaintiffs settled their claims regarding the Burnt Ridge sale in the Sequoia NF but continued to litigate the ARA changes. “The government’s contention that the Burnt Ridge settlement eliminated plaintiffs’ standing to challenge the rules, ‘conflates … standing with … mootness,’” they said in their brief, citing Becker v. FEC, 230 F.3d 381, 387 n.3 (1st Cir. 2000). “If there is standing at a case’s commencement, the court retains jurisdiction unless the case becomes moot.”

In July 2005, Senior U.S. District Judge James K. Singleton enjoined the Forest Service from implementing five of nine regulations challenged by the plaintiffs, including the exemption from the appeals process. In September Singleton clarified that the injunction applied nationwide. The Ninth Circuit subsequently affirmed his judgment with respect to the June 2003 rule.

The initial affidavit used to mount the facial challenge was signed by forest activist Jim Bensman of Heartwood, a national group whose principal, but not sole, focus is national forests in Ohio, Indiana, Illinois and Kentucky. Bensman submitted two more declarations when the Forest Service tried to convince the Ninth Circuit to stay the injunction.

The government continued to dispute his standing qualifications.

Questions presented

1. Whether the Forest Service’s promulgation of 36 C.F.R. 215.4(a) and 215.12(f), as distinct
from the particular site-specific project to which those regulations were applied in this case, was a proper subject of judicial review.

2. Whether respondents established standing to bring this suit.

3. Whether respondents’ challenge to 36 C.F.R. 215.4(a) and 215.12(f) remained ripe and was otherwise judicially cognizable after the timber sale to which the regulations had been applied was withdrawn, and respondents’ challenges to that sale had been voluntarily dismissed with prejudice, pursuant to a settlement between the parties.

4. Whether the court of appeals erred in affirming the nationwide injunction issued by the
district court.