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Region 8 Forest Serv. Timber Purchasers Council v. Alcock

ELR Citation: 23 ELR 21051
Nos. No. 91-8892, 993 F.2d 800/(11th Cir., 06/21/1993) Aff'd

The court holds that timber companies and an industry trade association lack standing to bring claims under the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the National Forest Management Act (NFMA) challenging actions by the U.S. Forest Service to protect the red-cockaded woodpecker in the Southern Region of the National Forest System. The Forest Service issued a policy strictly limiting the permissible methods for timber harvesting in areas within 3/4 of a mile of a woodpecker colony. The timber companies held contracts subject to the policy. Their contracts included an endangered species provision, which permitted the Forest Service to cancel or unilaterally modify the contracts if measures to protect the woodpecker proved inadequate. Also, the policy directed the Forest Service contracting officers to request the holders of timber contracts to suspend logging on the restricted areas pursuant to the endangered species clause, and instructed the contracting officers to make maximum possible efforts to provide timber for deleted volumes by mutual contract modification. Each of the timber companies agreed to modify all of their contracts subject to the policy. In district court, the companies alleged that the Forest Service failed to implement fully the Woodpecker Chapter of its Wildlife Habitat Management Handbook in violation of the ESA and that the Forest Service illegally adopted the woodpecker policy in violation of the ESA, NEPA, and the NFMA.

The court first holds that the district court did not abuse its discretion by granting the plaintiffs' motion for reconsideration and considering affidavits they submitted that alleged quality of life injuries. The affidavits are particularized allegations of fact that support the plaintiffs' standing. The court next holds that plaintiffs' alleged economic injuries based on a reduction in available timber and increased logging costs under the contracts are not jurisdictionally cognizable by the court, because they arise out of contracts with the United States. The contracts provide that all disputes arising under or relating to the contracts are to be resolved in accordance with the Contract Disputes Act. The court holds that an alleged reduction in future timber supplies resulting from the Forest Service's actions does not support standing, because no right is conferred on the companies to harvest a set amount of timber each year and there is no substantial likelihood that this injury will be redressed by the relief the plaintiffs seek. The court holds that alleged quality of life injuries from layoffs, income reductions, a decreasing tax base, and a loss in public services, fail for the same reasons as the alleged economic injuries. The court holds that the plaintiffs' alleged interest in developing strategies for the woodpecker that are consistent with forest plans, are scientifically defensible, and do not impose unwarranted restrictions on timber harvesting, do not support standing, because this interest does not satisfy the injury-in-fact requirement of standing. Also, the plaintiffs' claim that their interest is at least partly motivated by their employees' interest in the outdoors runs afoul of the prudential limitation that plaintiffs must assert their own rights and may not rest on the rights of others. Further, no obstacle exists to the employees bringing suit to protect their own interest in the environment.

Finally, the court holds that the plaintiffs do not have standing to assert procedural injuries to their rights to information, participation, and informed decisionmaking. These injuries are generalized grievances that fail to satisfy the injury-in-fact requirement for standing. They are not peculiar to the plaintiffs, but rather are shared by all citizens.

[The district court's opinion is published at 20 ELR 21143.]

Counsel for Plaintiffs-Appellants
John A. MacLeod
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500
Alexander S. Clay
1100 Peachtree St., Atlanta GA 30303
(404) 572-6500

Counsel for Defendants-Appellees
Daniel Caldwell, Ass't U.S. Attorney
U.S. Attorney's Office
1800 U.S. CtHse., 75 Spring St. SW, Atlanta GA 30335
(404) 331-6954
William B. Lazarus
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before TJOFLAT, Chief Judge, BLACK, Circuit Judge, and JOHNSON, Senior Circuit Judge.