The Supreme Court Restricts the Availability of Forest-Wide Judicial Review in Ohio Forestry Ass'n v. Sierra Club

Steven P. Quarles and Thomas R. Lundquist

Editors' Summary: This past summer, the U.S. Supreme Court rendered its decision in Ohio Forestry Ass'n v. Sierra Club, 118 S. Ct. 1665, 28 ELR 21119 (1998). The Court held that an environmental group's challenge to a U.S. Forest Service land and resource management plan for the Wayne National Forest in Ohio was not ripe for review. This Article examines how this decision affects the rules for judicial review of national forest plans. After providing general background information on national forest planning and decisionmaking, the authors describe the claims raised in the Wayne National Forest case and treatment of the claims by the lower courts. This is followed by a discussion on the Supreme Court's opinion and the reasoning used in reaching its decision. Last, the authors focus on the implications this case will have on future challenges.

Mr. Quarles is a partner in, and Mr. Lundquist is special counsel to, the Washington, D.C., law firm of Crowell & Moring LLP. The authors represented the Ohio Forestry Association before the Supreme Court.

[28 ELR 10621]

On May 18, 1998, the U.S. Supreme Court issued a decision that affects the timing of, and limits the scope of and context for, judicial review of national forest plans. In Ohio Forestry Ass'n v. Sierra Club,¹ a unanimous Court found that two environmental groups' facial challenge to the forest plan for the Wayne National Forest was not justiciable under the ripeness doctrine. The Court stated — as it had in Lujan v. National Wildlife Federation² — a strong presumption in favor of case-by-case adjudication on the concrete facts of a decision to undertake a site-specific activity, such as a timber sale. This adjudication of the site-specific activity that immediately threatens injury would occur to the exclusion of a forest-wide judicial review of the predictions and policies in a forest plan that shape, but do not authorize, the activity.

The Supreme Court's guidance came at a particularly appropriate time. In the next five years, over 80 revised forest plans are expected to be adopted. Those forest plans would have been subject to wide-ranging, facial judicial review in at least three circuits.

This Article first provides the reader with background information on national forest planning and decisionmaking, and on the 3 to 2 circuit split regarding the justiciability of challenges to forest plans. Next, the Article describes the claims in the Wayne National Forest case, their disposition in the lower courts, and why the Sixth Circuit's unusual opinion made the case attractive for Supreme Court review. This description is followed by an in-depth explanation on the Ohio Forestry Ass'n decision, including its reasoning and its implications for other challenges to forest plans and their environmental impact statements (EISs).

Background

The National Forest System is managed by the U.S. Forest Service for the multiple uses of outdoor recreation, range, timber, watershed, and wildlife and fish purposes.³ The National Forest Management Act of 1976 (NFMA)⁴ requires the preparation of a land and resource management plan (forest plan) for each national forest or group of national forests.⁵ The forest plan must "provide for multiple use and sustained yield of the products" from the national forest.⁶ It provides for multiple uses by assigning lands to specific management areas designed to promote particular sets of multiple uses and by specifying the minimum management prescriptions or zoning constraints that will apply to future proposals for site-specific development activities, such as timber sales, in those areas.⁷ Sustained yield is determined by setting forest-wide "logging goals" and predicted output [28 ELR 10622] levels for other resources.⁸ Further, a forest plan sets forth the long-term planning direction of a national forest, which may encompass more than 1 million acres, for a period of up to 15 years.⁹

The Forest Service typically follows a two-stage approach to decisionmaking for ground-disturbing activities in national forests: forest-wide decisions reflected in a forest plan, followed by a site-specific decision on a particular project. A forest plan makes basic land allocation decisions and provides general planning-level direction. However, a timber sale and most other ground-disturbing activities in national forests cannot take place until there has been site-specific analysis under the National Environmental Policy Act (NEPA)¹⁰ for the timber sale, as well as a project-level decision to conduct the timber sale at a particular geographic location and under a specific set of environmental stipulations or constraints. As described by the Supreme Court:

Although the Plan sets logging goals, selects the areas of the forest that are suited to timber production … and determines which "probable methods of timber harvest," are appropriate … it does not itself authorize the cutting of any trees. Before the Forest Service can permit the logging, it must: (a) propose a specific area in which logging will take place and the harvesting methods to be used …; (b) ensure that the project is consistent with the Plan …; (c) provide those affected by proposed logging notice and an opportunity to be heard …; (d) conduct an environmental analysis pursuant to … (NEPA) … to evaluate the effects of the specific project and to contemplate alternatives …; and (e) subsequently take a final decision to permit logging, which decision affected persons may challenge in an administrative appeals process and in court ….¹¹

This two-staged approach is followed because of the difficulties in attempting to prepare plans that describe all activities that could occur on an entire forest over a 15-year time frame, to analyze specific activities required by NEPA and the Endangered Species Act of 1973 (ESA),¹² to anticipate changing agency priorities, and to forecast congressional appropriations.

More importantly for purposes of this Article, the two-stage approach to national forest decisionmaking and to ground-disturbing activities creates significant issues as to whether direct challenges to a forest plan that seek forest-wide relief are justiciable. These so-called facial challenges give rise to constitutional justiciability issues that spring from Article III's restriction of judicial authority to concrete cases or controversies. These justiciability issues are usually expressed in terms of constitutional standing. For example, does a plaintiff suffer the imminent and certain injury-in-fact required by Lujan v. Defenders of Wildlife¹³ on a facial challenge to a forest plan where plaintiff's environmental injury is contingent on the later approval of timber sales or other ground-disturbing activities?

Prudential justiciability concerns, which are usually expressed in ripeness terms of whether certain issues are fit for judicial review, are also presented. For example, is it appropriate for a court to conduct judicial review of an entire forest plan when it is unclear how the plan's features will interact in subsequent practice? Does a challenge to a site-specific decision provide a more manageable controversy by presenting a concrete, factual situation for judicial review? The Supreme Court addressed these justiciability issues in Ohio Forestry Ass'n.

The 3 to 2 Circuit Split

Before the Ohio Forestry Ass'n decision, the lower courts had reached different conclusions on the justiciability of a facial challenge to a forest plan and to the EIS the Forest Service prepares for each plan.¹⁴ Though the legal claims and facts of the cases differ somewhat, the basic breakdown among the courts was a 3 to 2 circuit split in favor of the justiciability of such plan-level challenges.¹⁵ Notably, the Eleventh Circuit's dismissal on prudential ripeness grounds in Wilderness Society v. Alcock of forest plan claims nearly identical to those raised in the Wayne National Forest case correctly anticipated the Supreme Court's disposition.

The legal commentators also were divided. Several student notes and articles by attorneys who had brought challenges to forest plans favored broad judicial review of forest plans, while attorneys for the Forest Service presented the opposite view.¹⁶

Despite the disagreement among the courts and legal scholars, neither the forest products industry nor the Forest Service had reason to seek Supreme Court review to resolve the justiciability issue prior to the Wayne National Forest case. The two circuits that had found plan-level challenges to be justiciable upheld the forest plans on their merits in Sierra Club v. Marita¹⁷ and Idaho Conservation League v. Mumma.¹⁸ These dynamics changed, however, in the Ohio Forestry Ass'n case.

[28 ELR 10623]

The Wayne National Forest Case

The Wayne Forest Plan (the Plan) was adopted in 1988. In 1992, the Sierra Club and the Citizens Council on Conservation and Environmental Control (collectively, Sierra Club or Plaintiffs) filed a three-count complaint generally maintaining that the Plan unlawfully favored timber harvesting over primitive recreational uses of the Wayne National Forest. Plaintiffs' declarations and government documents lodged with the Supreme Court clerk's office showed that timber sales occurred both before and after the filing of the complaint. Nonetheless, Plaintiffs did not challenge any timber sales or the Plan as applied in a particular timber sale. Rather, the Sierra Club sought forest-wide relief in facial challenges to the Plan, its EIS, and a Forest Service regulation.

The Facial Challenges

Plaintiffs' first claim was that the Plan, in permitting below-cost timber sales accomplished by means of clear-cutting, violates the NFMA, NEPA, and other laws.¹⁹ Specifically, this first claim was a facial challenge to the Wayne Forest Plan under various NFMA provisions, such as § 6(g)(3) and (k),²⁰ as well as to the Plan EIS under NEPA. The facial challenges to the Plan and the EIS were premised on claims of environmental injuries from timber harvesting. Plaintiffs challenged the Plan's designation of suitable timber lands, the Plan's multiple use allocation of lands to management areas that anticipate timber production rather than primitive recreation, and the Plan's projections on the probable percentage of harvesting by clearcutting and other even-aged methods. Plaintiffs' NEPA claims also challenged the adequacy of the Plan EIS' discussion of alternatives and of the economics of suitable timber lands. The relief the Sierra Club sought on this claim was "an injunction prohibiting further timber sales and clearcutting until the plan and its environmental impact statement are revised."²¹

The second claim in the complaint was that the Plan violated the Forest Service's duty as a public trustee.²² Though the Sierra Club did not litigate this claim, it was an apparent attempt to extend the public trust doctrine to federal lands and to create greater conservation duties on national forests, either substantively or by increasing the judicial scrutiny of development actions.

Third, Plaintiffs claimed that because a Forest Service regulation concerning land found suitable for timber production²³ "permitted the Service to place 'economically unsuitable lands' in the category of land where logging could take place, the regulation[]" violated the NFMA.²⁴ The Plaintiffs argued that the regulation violated 16 U.S.C. § 1604(k), which requires that "economic" and other factors be considered when a forest plan identifies suitable timber lands.²⁵

The Lower Court Opinions

District Court Judge James L. Graham affirmed the legality of the Wayne Forest Plan and EIS on the merits in a lengthy 1994 summary judgment opinion.²⁶ He rejected both the economic and harvesting method aspects of Plaintiffs' first claim on the merits.²⁷

Plaintiffs did not litigate the second claim. Several authorities have concluded that the public trust doctrine either does not apply to federal lands or, due to Congress' Property Clause authority over federal lands, the doctrine does not alter the federal land management duties created by statute or the judicial review standards specified in the Administrative Procedure Act (APA).²⁸ The third claim, that the Forest Service regulation violated NFMA § 6(k), was litigated and rejected by the district court.²⁹ The parties did not raise justiciability issues before the district court.

The Sierra Club appealed. The appeal was briefed and argued before a panel of the Sixth Circuit in 1994 and 1995. The Sixth Circuit reversed in a short, but broadly worded, opinion released in January 1997.³⁰

The Sixth Circuit reversed the district court's dismissal of Plaintiffs' first claim regarding the Plan and its EIS. It found that as an economic matter, "[t]imbering simply does not promote the kind of recreational activities that are in demand in the Wayne," so "clearcutting loses its value," and that the NFMA limits use of "even-aged management techniques" to "exceptional circumstances."³¹

Chief Judge Martin's majority opinion was unusual in several respects, which made it an attractive candidate for discretionary Supreme Court review. First, the Sixth Circuit [28 ELR 10624] found a justiciable controversy without mentioning or distinguishing any cases, such as Wilderness Society v. Alcock, that found nearly identical facial challenges to forest plans nonjusticiable.

Second, the Sixth Circuit expressed several questionable holdings with respect to the merits without citing either the administrative record or a single case. For example, the Sixth Circuit concluded that the NFMA "contemplates that even-aged management techniques will be used only in exceptional circumstances."³² This language, as well as the rhetoric concerning bias discussed below, was borrowed word-for-word — without attribution — from a district court opinion that the Fifth Circuit had reversed after a detailed review of the NFMA's language and legislative history.³³ The Sixth Circuit declined to address the Fifth Circuit's opinion, even though it was attached to the government's appellate brief.

Third, the Sixth Circuit's opinion contained an extraordinary accusation of institutional bias. In essence, the majority opinion stated that the Forest Service is biased to-ward timber production in a judicially meaningful way because of funding mechanisms explicitly mandated by statutes Congress had enacted for the National Forest System.³⁴ Although the opinion failed to acknowledge the statutory origin of these "biases," the court implicitly held that the agency is unlawfully biased precisely because it adheres to those laws. The panel stated that this institutional bias "undermines even the facial neutrality of the National Forest Management Act," though the 16 U.S.C. §§ 500 and 576b funding mechanisms were part of the NFMA.³⁵

The panel apparently believed that its finding of inherent agency bias permitted it to ignore the Forest Service's stated justifications for the Wayne Forest Plan, as the opinion fails to cite to the administrative record or address the agency's explanations. Arguably, the panel displaced the expert agency's alleged bias with its own bias or policy view that more national forest lands should be devoted to primitive recreation.

Supreme Court Briefing

Until the Sixth Circuit's decision, the Ohio Forestry Association had been a low-profile intervenor-defendant. But the precedents created by the Court of Appeals' decision raised the stakes for the forest products industry. Thus, the Ohio Forestry Association sought discretionary Supreme Court review by petitioning for a writ of certiorari.

Surprisingly, the Solicitor General's Office opposed the Association's petition for Supreme Court review. In his certiorari opposition brief, the Solicitor General walked a tight-rope by arguing that the justiciability and merits issues were significant enough to warrant Supreme Court scrutiny while at the same time requesting that the petition be denied on procedural grounds.³⁶ Over the objections of both Plaintiffs and Defendants, the Supreme Court granted the Ohio Forestry Association's petition for review on October 20, 1997.

Briefing occurred on the justiciability issues of standing and ripeness regarding the facial challenges to the forest plan, the plan EIS, and the regulation; the institutional bias issue; and NFMA merits issues, such as whether even-aged management is limited to exceptional circumstances and whether national forest statutes create a preference for primitive recreation over timber production.³⁷ In keeping with the government's position at the certiorari stage, the Solicitor General was aligned with the Ohio Forestry Association on these issues.

The Sierra Club, in its brief and at the February 25, 1998, oral argument, did not defend the Sixth Circuit's bias ruling or its ruling that even-aged management is limited to exceptional circumstances. The Sierra Club's brief also devoted little space to arguing that claims and injuries contingent on the approval of a timber sale were justiciable. Instead, the Plaintiffs' principal justiciability arguments were that the overall multiple use allocation in a forest plan is never revisited and, therefore, should be reviewable in a facial challenge.³⁸ They further argued that some nonlogging elements of a forest plan are implemented immediately, such as where the forest plan's multiple use allocation opens up a new area to off-road vehicle use, and, therefore, should be subject to judicial review at the plan stage, when injury is imminent.³⁹

Summary of the Supreme Court's Opinion

Justice Breyer's opinion for the Court holds that the Sierra Club's complaint "is not justiciable, because it is not ripe for [28 ELR 10625] court review."⁴⁰ Because the Sixth Circuit inappropriately reached themerits of a nonjusticiable controversy, the Supreme Court vacated the Court of Appeals' decision and remanded the case with instructions to dismiss.⁴¹ This effectively nullifies the Sixth Circuit's rulings, and terminates the case.

In overview, Ohio Forestry Ass'n is an application of two landmark ripeness decisions — Abbott Laboratories v. Gardner⁴² and Lujan v. National Wildlife Federation (NWF).⁴³ Abbott Laboratories provides two bedrock criteria, "hardship to the parties" and the "fitness of the issues for judicial decision," to be applied in deciding whether preen-forcement challenges are ripe for review.

Though Lujan v. NWF is best known as a standing decision, a portion of the case addresses ripeness issues in considering the appropriateness of judicial review of programmatic agency actions.⁴⁴ Based on separation-of-powers concerns, Lujan v. NWF establishes a presumption, which Congress can often reverse by enacting a statute directing broader judicial review, that courts should engage in case-by-case review of specific factual situations to the exclusion of programmatic (here, forest-wide) review and injunctions. In addressing the respondent's claim in Lujan v. NWF that a Bureau of Land Management program violated the Federal Land Policy and Management Act, the Court stated:

[R]espondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made …. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "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 ….

….

The case-by-case approach that this requires is understandably frustrating to an organization … [having] as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts.⁴⁵

Applying Abbott Laboratories and Lujan v. NWF to the justiciability of the logging-related aspects of the Wayne National Forest Plan and its EIS, the Court in Ohio Forestry Ass'n concludes that the facial challenges are not justiciable under either the hardship to plaintiffs or the fitness for judicial review components of ripeness.⁴⁶ In reaching its decision, the Court clarifies the three ripeness factors that must be considered. One factor focuses on plaintiffs, one on the defendant agency, and one on the judicial system.

First is the timing consideration of "whether delayed review would cause hardship to the plaintiffs."⁴⁷ There, the Court found that the Sierra Club suffers no injury on its anti-logging claims brought solely against the Plan because a future site-specific decision would be necessary before timber harvesting could occur.⁴⁸ Further, Plaintiffs can avoid hard-ship if they sue on an individual timber sale "when harm is more imminent and more certain."⁴⁹

The second factor concerns the timing and context of judicial review from the perspective of the agency's primary jurisdiction. It addresses whether early "judicial intervention would inappropriately interfere with further administrative action," as one purpose of the ripeness doctrine is to "'protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.'"⁵⁰ The Court found that because the Plan's predicted volume of timber sales and method of harvesting might not occur, later judicial review in the context of a particular timber sale has the benefit of allowing the agency to "refine its policies."⁵¹

Third, the Court concerned itself with the timing and scope of judicial review from the perspective of the courts. The judiciary must consider "whether the courts would benefit from further factual development of the issues presented," as the ripeness doctrine is designed "'to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies.'"⁵² The Court preferred, under the presumption stated in Lujan v. NWF, to forego facial review of an "elaborate, technically based plan" and instead chose to engage in review of a suit of "'more manageable proportions'" on a site-specific timber sale once the "'factual components'" of how the Plan is being implemented have been fleshed out by some action providing concrete facts that significantly advance a court's "'ability to deal with the legal issues presented.'"⁵³

The Court declined to address the justiciability of forest plan challenges where the claims and injuries are not contingent on logging or some other activity requiring a second stage of decisionmaking after the forest plan'sadoption. The Court concluded that it could not consider the justiciability of the Sierra Club's arguments that it was directly injured by "the Plan's approval of [the use of] motorcycles or machinery [in specific areas, and] the Plan's failure to close roads or to provide for the building of trails," because those types of claims "are not fairly presented" in the complaint.⁵⁴ Rather than expressing dicta on unpresented issues, the Court merely noted that the "Government concedes" that the "ripe-ness analysis … with respect to those provisions of the Plan that produce the harm would be significantly different."⁵⁵

[28 ELR 10626]

Interestingly, the Court decided the case on prudential ripeness principles and did not expressly reach the Article III standing issues. Justice Breyer's reference to Steel Co. v. Citizens for a Better Environment suggests that the Court was following its practice of not addressing constitutional issues or nondiscretionary limitations on jurisdiction when the case can be decided on nonconstitutional grounds or on discretionary court-made limitations on jurisdiction.⁵⁶

Nevertheless, the opinion signals that Plaintiffs would have had difficulty in establishing Article III standing. The imminent and certainly impending injury required for Article III standing under decisions such as Lujan v. Defenders of Wildlife⁵⁷ seems to embody the same or nearly the same test as the imminent and significant hardship factor in ripe-ness jurisprudence.⁵⁸ If this is true, the Court's conclusion in Ohio Forestry Ass'n that Plaintiffs did not suffer "significant 'hardship'" or "adverse effects" at the forest plan level where their injuries were contingent on approval of a timber sale suggests that, had it been necessary to address the issue, the Court likely would have found that Plaintiffs lacked Article III standing on their forest plan challenge.⁵⁹

The Significance of Ohio Forestry Ass'n for Challenges to Forest Plans and EISs

The Supreme Court's ripeness decision does not merely concern the timing of judicial review. After all, it would have been odd for a unanimous Court to hold in 1998 that a challenge to the 10-year-old Wayne Forest Plan was not ripe solely on timing grounds, particularly where the Court was aware that numerous timber sales had occurred pursuant to the Plan. The Court also ruled on the scope and context of judicial review by giving decisive weight to the "fitness of the issues for judicial decision" factors set forth in Abbott Laboratories and to the presumption in favor of site-specific judicial review over programmatic relief contained in Lujan v. NWF.

Ohio Forestry Ass'n certainly has a timing component, as the opinion applies the Abbott Laboratories factor of the "hardship" to Plaintiffs in withholding judicial consideration of grievances with the Plan. But the decision goes beyond pure timing considerations, as the Article will show below in addressing the Supreme Court's guidance on the disposition of different types of forest planning cases.

The Justiciability of Challenges to Timber-Related Aspects of a Forest Plan

The Supreme Court's decision ultimately supports the conclusion that facial challenges to the timber-related aspects of a forest plan are not justiciable, at least when premised on theories of environmental injury from timber harvesting.⁶⁰ Instead, the context for judicial review of timber-related claims is a suit against a specific timber sale.

For example, the Court found unpersuasive the Sierra Club's argument that it satisfied the hardship-to-plaintiffs factor because "it will be easier, and certainly cheaper, to mount one legal challenge against the Plan now, than to pursue many challenges to each site-specific logging decision to which the Plan might eventually lead."⁶¹ The Court's Lujan v. NWF opinion provides for judicial review "only when, and to the extent that, a specific 'final agency action' has an actual or immediately threatened effect" and notes that this "case-by-case approach" does not provide as "farreaching a corrective process as those interested in systemic improvement would desire."⁶² Consequently, in Ohio Forestry Ass'n, the Court held that the judicial interest in fact-specific, manageable cases overrode the Sierra Club's interest in minimizing its litigation costs. "The ripeness doctrine reflects a judgment that the disadvantages of a premature review that may prove too abstract or unnecessary or dinarily outweigh the additional costs of — even repetitive — post-implementation litigation."⁶³ Because the Sierra Club could later challenge a specific timber sale proposal at a particular site when the environmental "harm is more imminent and more certain," the Court concluded the Sierra Club's anti-logging interests would be protected even if forest-wide review of a forest plan were not allowed.⁶⁴

The Court emphasized the presumption that judicial review is available only case-by-case in concrete, factual situations in other portions of the opinion. It applied the fitness-for-review factor of whether the courts would benefit from further factual development after a forest plan has been adopted, and expressed an unwillingness to engage in facial review of "the details of an elaborate, technically based plan, which predicts consequences that may affect [28 ELR 10627] many different parcels of land in a variety of ways, and which effects themselves may change over time."⁶⁵ Instead of entertaining such facial challenges, the Court sought the "benefit of the focus that a particular logging proposal could provide" in terms of establishing concrete facts and a manageable controversy.⁶⁶

In addressing the ripeness factor of premature judicial interference with agency initiatives, the Court again returned to its theme of preferring to await "application of the Plan in practice, e.g., in the form of site-specific proposals, which proposals are subject to review by a court applying purely legal criteria."⁶⁷ Here, the Court seems to express two thoughts. First, because a forest plan provides for different multiple uses through an array of planning elements, the multifaceted plan can be misunderstood if review occurs in the factual vacuum of a facial challenge. A site-specific proposal provides facts on how the forest plan is actually implemented on the ground, and thereby makes judicial review more manageable and objective.⁶⁸ Second, in noting that a federal court can override Forest Service decisions on only "purely legal grounds," the Court perhaps cautioned lower courts that they are not the institution charged with making policy decisions and scientific judgments for the national forests. Both the Solicitor General and the Ohio Forestry Association emphasized the Forest Service's broad discretion in deciding multiple use issues (e.g., contrary to the Sixth Circuit and the Sierra Club's position, the agency had no legal duty to meet 100 percent of the demand for primitive recreation at the expense of multiple uses like timber production).⁶⁹

Significantly, though the Court concluded that the Sierra Club could later challenge a specific timber sale proposal at a particular site when the harm is more imminent and certain, this does not allow for review of the entire forest plan. While the portions of the forest plan relied on for that timber sale may be reviewed "as applied," the scope of judicial review would not extend to the entire forest plan and injunctive relief would not extend to the entire forest.

The Court stated that during this focused, fact-specific review, the Plaintiffs could bring an as-applied "challenge to the lawfulness of the present Plan if (but only if) the present Plan then matters, i.e., if the Plan plays a causal role with respect to the future, then-imminent, harm from logging."⁷⁰ A careful review of this last sentence reveals that the occurrence of one timber sale does not open up the entire forest plan to judicial review. Instead, a court can review portions of the forest plan only as needed to resolve the legality of the timber sale (if, but only if, the plan plays a causal role in allowing logging). Only to that extent has the forest plan created the imminent harm required by both ripeness and standing jurisprudence.

That the occurrence of a challengeable site-specific activity does not authorize review of the entire forest plan, or forest-wide relief, is also clear from the Court's later statement that "one initial site-specific victory (if based on the Plan's unlawfulness)" might, "through preclusion principles, effectively carry the day."⁷¹ In other words, while issue preclusion principles could mean that the Forest Service would lose a second site-specific case due to a defect in the forest plan that a court identified in the first site-specific case, any change in the forest plan would not occur through forest-wide injunctive relief, but through either Forest Service acquiescence or issue preclusion.

Ohio Forestry Ass'n signifies that national forest-wide judicial review and injunctive relief will not be available in many cases. Moreover, the decision generally supports the conclusion that facial challenges to the portions of a forest plan that require a second-stage decision before development and environmental injury would occur are not justiciable. Instead, the second-stage decisions may be challenged case-by-case, and "as applied" review of the relevant portions of the forest plan is permitted in this context. This simply extends the Ohio Forestry Ass'n holding on the timber-related aspects of a forest plan to challenges to other development-oriented portions of a forest plan that require a second site-specific decision before development and environmental injury occur.

The Justiciability of Challenges to Portions of Forest Plans Implemented Immediately

The Ohio Forestry Ass'n decision does not expressly resolve whether challenges to the portions of a forest plan that are being implemented immediately without a second-stage decision and that are causing imminent hardship or injury are justiciable in a forest-wide suit or in a suit concerning particular lands.

[28 ELR 10628]

The Ohio Forestry Ass'n opinion explains that such issues were not before the Court, but that the government conceded that the ripeness analysis would be different where, instead of a forest-wide challenge, there was a challenge to a plan "decision to close a specific area to off-road vehicles" or to allow "motorcycles into a [specific] bird-watching area."⁷² The Court may be doing nothing more than reserving judgment for another dayon an unpresented issue where the ripeness analysis could be (but might not be) different.

Yet, the Court's quotation can also be read as an implicit endorsement of the common position of the Solicitor General and petitioner. They had argued that, where the provisions in a forest plan cause direct environmental injury to a plaintiff without a second-stage decision, plaintiff may obtain immediate judicial review of the land allocation decision for particular lands used by plaintiff, but this does not open up the forest plan's entire land allocation to judicial review.⁷³ Conducting facial or forest-wide review of the acreage a forest plan allocates to off-road vehicle use and/or birdwatching is likely to embroil the courts in the kind of "'abstract disagreements over administrative policies'" on multiple use allocations that the Court declined to undertake in the Wayne National Forest case, despite the Sierra Club's argument that the multiple use allocation will not be revisited during forest plan implementation.⁷⁴

In addition to the difficulties under the fitness-for-review component of ripeness, there are significant questions as to whether an environmental group plaintiff who seeks to increase the percentage of lands allocated forest-wide to a particular multiple use can meet constitutional standing requirements. Arguably, a plaintiff would not be injured unless he or she can show that the land allocated to a particular use matches up to the areas actually used by plaintiff, and it remains speculative whether a court order directing the forest-wide relief that a higher percentage of lands be devoted to a particular multiple use would redress that plaintiff's environmental injury, because the additional acres could come from anywhere in an extensive national forest and may not include the areas used by plaintiff.⁷⁵

These standing and ripeness concerns are minimized where a court only reviews the concrete facts involving a specific site in a national forest (e.g., where the plan allows immediate off-road vehicle use of a specific area that the plaintiff formerly used for birdwatching), as the government recognized in its examples. Thus, a properly situated plaintiff might be able to obtain site-specific review at the time a forest plan allows use of a particular tract of land in a manner injuring plaintiff. However, because a "court appl[ies] purely legal criteria,"⁷⁶ the Forest Service's broad discretion in making multiple use allocations under statutes that "'breathe discretion at every pore'"⁷⁷ may often mean that challenges to the Forest Service's multiple use policy decisions will fail on the merits.

Therefore, Ohio Forestry Ass'n seems to signify that persons who do not suffer direct injury from a forest plan and who can obtain judicial review if a second-stage decision injures them are limited to judicial review at the second stage, but persons who have no later opportunity for judicial review and who are presently injured can obtain current judicial review to the extent they are injured.⁷⁸

The Justiciability of Challenges to a Forest Plan EIS

The justiciability of challenges to a forest plan EIS seems to depend on the type of environmental injury asserted and generally follows the justiciability rules for the forest plan itself. In the Ohio Forestry Ass'n opinion, the Court contrasts the ripeness of a substantive, still-to-be implemented forest plan with a procedural forest plan EIS, which "can never get riper."⁷⁹ At first blush, this appears to suggest that immediate facial review of a forest plan EIS' compliance with NEPA is allowed. However, this reading would be incorrect for two reasons.

First, as the Court's opinion describes, the Sierra Club's complaint included NEPA claims against the Plan EIS. Because the Plan EIS claims were dismissed as nonjusticiable, the Court seemingly found that EIS claims, which depended on later timber sale decisions before environmental injury could occur, were not justiciable in a facial challenge to the Plan EIS.

Second, at most the statement that a "NEPA claim can never get riper" refers only to the ripeness of a forest plan EIS.⁸⁰ The same sentence maintains the Article III limitation that the EIS can only be challenged by "a person with standing who is injured by a failure to comply with the NEPA procedure."⁸¹ NEPA standing requires, in addition to the always present injury to the procedural interest in an adequate NEPA document, that the plaintiff has "concrete interests" that could be substantively injured by the action [28 ELR 10629] on which the EIS was prepared.⁸² Where the forest plan does not affect a plaintiff's concrete environmental interests because it does not authorize the logging activities complained of, there should be no standing to challenge the forest plan EIS. The Court appears to reach this result by stating that NEPA documents can only be challenged by a "person with standing"; concluding that these Plaintiffs suffer no imminent harm or injury from the Plan alone, which may indicate that Plaintiffs lack standing; and dismissing the NEPA claims against the Plan EIS as nonjusticiable.

Impact on Lower Courts

If the foregoing analysis is correct, then the only forest planning cases that clearly were decided correctly by the lower courts were the jurisdictional dismissals of facial challenges to timber-related aspects of forest plans and plan EISs in Wilderness Society v. Alcock⁸³ and Sierra Club v. Robertson.⁸⁴

Ohio Forestry Ass'n casts doubt on numerous lower court decisions that found facial challenges to forest plans and plan EISs justiciable and proceeded to decide them on their merits.⁸⁵ The most questionable of these decisions are those relying on the propositions that facial review of broad planning actions is allowed if the environmental claims and environmental injuries relate to timber harvesting or other developmental actions requiring a second-stage approval, and that judicial review must be available on a forest-wide or region-wide basis. Both of these propositions were rejected in Ohio Forestry Ass'n and Lujan v. NWF.⁸⁶

Legislative Options

In addition to emphasizing the proposition that judicial review is most manageable and legitimate in site- and fact-specific controversies, the Court also expressed separation-of-powers concerns with respect to judicial superintendence over Executive Branch programs and program-wide injunctions absent congressional authorization. Congress could overcome the prudential aspects of Ohio Forestry Ass'n's limitations on judicial review by enacting a statute providing for forest-wide judicial review on adoption of a forest plan. However, Congress' power is limited because it cannot enact statutes that violate Article III.

Justice Breyer notes that "Congress has not provided for pre-implementation judicial review of forest plans."⁸⁷ This indicates that Congress has not exempted forest plans from the default position stated by the Court in Lujan v. NWF that "[e]xcept where Congress explicitly provides for our correction of the administrative process at a higher level of generality [here, by providing for facial review of a forest plan], we intervene in the administration of the laws only when, and to the extent that, a specific 'final agency action' has an actual or immediately threatened effect."⁸⁸

However, while Justice Breyer's observation may imply that Congress could enact a statute providing for facial review of forest plans, sentences that follow call that implication into question. They state that forest "plans are tools for agency planning and management" and are "consequently unlike agency rules that Congress has specifically instructed the courts to review 'pre-enforcement.'"⁸⁹ This suggests that because forest plans provide such multifaceted, future-oriented, broad planning guidance, Congress could not lawfully authorize an Article III court to render an advisory opinion on the legality of an entire forest plan or to assume facts on how the plan will be implemented.

[28 ELR 10630]

Further, Article III and fitness-for-review principles may limit the judicial role to adjudicating specific controversies involving imminent injury under known facts. The Court's conclusion that Plaintiffs suffer no imminent hardship on adoption of the Plan can be read as implicitly stating that these Plaintiffs lack Article III standing.⁹⁰

The Significance of the Ohio Forestry Ass'n Decision for Charges of Institutional Bias

As noted above, the Sixth Circuit found that the Forest Service had an institutional bias toward timber production, which made the agency's decisions not worthy of judicial deference. The bias ruling, however, was negated as a precedent when the Supreme Court vacated the Sixth Circuit's opinion. Notably, had the Court upheld the Sixth Circuit's conclusion, the bias ruling would have undercut the Forest Service's ability to manage the National Forest System.

The Supreme Court commented briefly on the institutional bias charge. Using strong language by Supreme Court standards, Justice Breyer's opinion states:

This type of [forest-wide] review threatens the kind of "abstract disagreements over administrative policies," Abbott Laboratories, 387 U.S. at 148, that the ripeness doctrine seeks to avoid. In this case, for example, the Court of Appeals panel disagreed⁹¹ about whether or not the Forest Service suffered from a kind of general "bias" in favor of timber production and clear-cutting. Review where the consequences had been "reduced to more manageable proportions," and where the "factual components [were] fleshed out, by some concrete action" might have led the panel majority either to demonstrate that bias and its consequences through record citation (which it did not do) or to abandon the claim. National Wildlife Federation, 497 U.S. at 891.⁹²

This language suggests that the charge of institutional bias at the forest plan level is simply a policy disagreement and is not persuasive. The bias charge must be abandoned in the absence of fact-specific documentation of the kind of bias ordinarily considered by courts.

Moreover, because Congress has constitutional authority to adopt laws forming the mission for a federal agency and has exclusive authority over federal lands under the Property Clause, petitioner had a credible argument that the Sixth Circuit's concept that statutes bias the Forest Service in a judicially remediable way violates both the Property Clause and the separation of powers doctrine. Additionally, since Congress has prescribed deferential judicial review of the grounds an agency has articulated in the administrative record, ignoring the record and the agency's stated grounds for decision because the agency is "biased" seems to violate the APA. Further, the Sixth Circuit takes the concept of bias far beyond its historical meaning of a demonstrated bias due to extra-legal influences, which would not include a statute-induced bias.⁹³

Conclusion

In a deceptively short and uncontroversial opinion, Ohio Forestry Ass'n changes the rules for judicial review of national forest decisions. The opinion exemplifies the theme expressed in Lujan v. NWF that many programmatic issues should not be heard by the courts, and that judicial review is most manageable in site-specific controversies. Moreover, the opinion will result in fewer national forest-wide cases and injunctions. Whether Ohio Forestry Ass'n will lead to more site-specific cases concerning national forests is subject to conjecture, and depends on the reaction of potential plaintiffs.

The end result in Ohio Forestry Ass'n is a shift in national forest decisionmaking power away from the federal courts and to the Forest Service and Congress. This is consistent not only with justiciability and separation-of-powers principles, but also with the legislative intent that the NFMA is "designed to get the practice of forestry out of the courts and back to the forests."⁹⁴

1. 118 S. Ct. 1665, 28 ELR 21119 (1998).

2. 497 U.S. 871, 891-94, 20 ELR 20962, 20967-68 (1990).

3. 16 U.S.C. § 528; see id. §§ 475, 1604(e)(1), 1609, ELR STAT. NFMA §§ 6(e)(2), 11.

4. 90 Stat. 299 (1976) (codified in scattered sections of 16 U.S.C.). The NFMA provisions on forest planning appear in 16 U.S.C. § 1604, ELR STAT. NFMA § 6.

5. Id. § 1604(a), ELR STAT. NFMA § 6(a).

6. Id. § 1604(e)(1), ELR STAT. NFMA § 6(e)(1).

7. 36 C.F.R. § 219.11(c) (1997).

8. Ohio Forestry Ass'n v. Sierra Club, 118 S. Ct. 1665, 1668, 28 ELR 21119, 21120 (1998); 36 C.F.R. § 219.3.

9. See 16 U.S.C. § 1604(f)(5), ELR STAT. NFMA § 6(f)(5); 36 C.F.R. §§ 200.2, 200.3, 219.10(g).

10. 42 U.S.C. §§ 4321-4347, ELR STAT. NEPA §§ 2-209.

11. Ohio Forestry Ass'n, 118 S. Ct. at 1668-69, 28 ELR at 21120 (citations omitted).

12. 16 U.S.C. §§ 1531-1544, ELR STAT, ESA §§ 2-18.

13. 504 U.S. 555, 564-65, 22 ELR 20913, 20915 (1992).

14. See 36 C.F.R. § 219.12.

15. The Eleventh Circuit found that Article III and prudential ripeness barred a plan-level challenge in Wilderness Soc'y v. Alcock, 83 F.3d 386, 26 ELR 21401 (11th Cir. 1996). The Eighth Circuit found Article III standing absent in Sierra Club v. Robertson, 28 F.3d 753, 24 ELR 21596 (8th Cir. 1994). The Sixth, Seventh, and Ninth Circuits found that comparable plan-level challenges do create justiciable controversies, though they disagreed on the theory supporting that conclusion. Sierra Club v. Thomas, 105 F.3d 248, 27 ELR 20501 (6th Cir. 1997); Sierra Club v. Marita, 46 F.3d 606, 25 ELR 20514 (7th Cir. 1995); Idaho Conservation League v. Mumma, 956 F.2d 1508, 22 ELR 20569 (9th Cir. 1992), and its progeny.

16. Compare Michael J. Gippert & Vincent L. DeWitte, The Nature of Land and Resource Management Planning Under the National Forest Management Act, 3 ENVTL. LAW. 149, 182-86 (1996), with Beth Brennan & Matt Clifford, Standing, Ripeness, and Forest Plan Appeals, 17 PUB. LAND L. REV. 125 (1996), Paul A. Garrahan, Failing to See the Forest for the Trees: Standing to Challenge National Forest Management Plans, 16 VA. ENVTL. L.J. 145 (1996), Kelly Murphy, Cutting Through the Forest of the Standing Doctrine: Challenging Resource Management Plans in the Eighth and Ninth Circuits, 18 U. ARK. LITTLE ROCK L.J. 223 (1996), and Loss of Protection as Injury in Fact: An Approach to Establishing Standing to Challenge Environmental Planning Decisions, 29 U. MICH. J.L. REFORM 857 (1996).

17. 46 F.3d 606, 25 ELR 20514 (7th Cir. 1995).

18. 956 F.2d 1508, 22 ELR 20569 (9th Cir. 1992).

19. Ohio Forestry Ass'n, 118 S. Ct. 1665, 1669, 28 ELR 21119, 21120 (1998).

20. 16 U.S.C. § 1604(g)(3) and (k), ELR STAT. NFMA § 6(g)(3) and (k).

21. Joint Appendix at 24, Ohio Forestry Ass'n v. Sierra Club (No. 97-16) (U.S., filed Dec. 16, 1997). The timber land suitability analysis required by 36 C.F.R. § 219.14, which included some below-cost lands in the areas found suitable for timber production, is found in Appendix B3-37 to 3-39 of the Draft Environmental Impact Statement — Land and Resource Management Plan, Wayne National Forest (1986). Plaintiffs also raised NEPA claims on the adequacy of the seven plan alternatives considered in the Draft and Final Environmental Impact Statement — Land and Resource Management Plan, Wayne National Forest.

22. 118 S. Ct. at 1669, 28 ELR at 21120.

23. 36 C.F.R. § 219.14.

24. 118 S. Ct. at 1669, 28 ELR at 21120.

25. 16 U.S.C. § 1604(k), ELR STAT. NFMA § 6(k).

26. Sierra Club v. Robertson, 845 F. Supp. 485, 25 ELR 20052 (S.D. Ohio 1994).

27. Id. at 490-99, 500-01, 25 ELR at 20054-59, 20060.

28. Light v. United States, 220 U.S. 523, 537 (1911); Sierra Club v. Andrus, 487 F. Supp. 443, 449, 10 ELR 20555, 20555-58 (D.D.C. 1980), aff'd sub nom. Sierra Club v. Watt, 659 F.2d 203, 11 ELR 20880 (D.C. Cir. 1981); Richard Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631, 656-716 (1986).

29. Robertson, 845 F. Supp. at 496-97, 25 ELR at 20057-58; see also Reply Brief for Petitioner at 17-18, Ohio Forestry Ass'n (No. 97-16) (U.S., filed Feb. 12, 1998) (summarizing why the NFMA does not bar below-cost timber sales) (available from the ELR Document Service, ELR Order No. 1625-D).

30. Sierra Club v. Thomas, 105 F.3d 248, 27 ELR 20501 (6th Cir. 1997), rev'd and vacated by Ohio Forestry Ass'n v. Sierra Club, 118 S. Ct. 1665, 28 ELR 21119 (1998).

31. Id. at 251, 27 ELR at 20502-03. In even-aged management, most of the trees in a particular tree stand are of the same age. Even-aged stands are created naturally by fires, windstorms, and pest infestations — and are created by timber harvesting techniques that harvest most of the timber in one or two cycles (clearcut, shelterwood, and seed tree cutting methods). See 16 U.S.C. § 1604(g)(3)(F), ELR STAT. § 6(g)(3)(F); 36 C.F.R. § 219.3.

32. 105 F.3d at 251, 27 ELR at 20503.

33. Sierra Club v. Espy, 822 F. Supp. 356, 24 ELR 20051 (E.D. Tex. 1993), rev'd, 38 F.3d 792, 799, 25 ELR 20426, 20429 (5th Cir. 1994) (the "Forest Service may use even-aged management as an overall management strategy").

34. 105 F.3d at 251-52, 27 ELR at 20503. The relevant statutes — which the opinion did not cite — are 16 U.S.C. §§ 475 (which provides that national forests are established "to furnish a continuous supply of timber"), 500 (which directs that 25 percent of national forest revenues be shared with local counties "for the benefit of the public schools and public roads"), and 576-76d (which allows timber sale revenues to be devoted to reforestation projects and other Forest Service timber-related costs).

35. 105 F.3d at 252, 27 ELR at 20503. To support its view of the Forest Service's inherent bias, the panel cited a book, "Randal O'Toole, Reforming the Forest Service 122 (1988)." Id. at 251, 27 ELR at 20503. Curiously, the panel relied on Mr. O'Toole's book even though no party had cited it in their briefs and even though the district court had excluded an extra-record declaration by Mr. O'Toole, tendered by the Sierra Club. The book may have found its way into the opinion by a circuitous route. Two members of the Sixth Circuit panel had attended a summer institute for the judiciary in Montana. See Ruth Marcus, Issues Groups Fund Seminars for Judges; Classes at Resorts Cover Property Rights, WASH. POST, Apr. 8, 1998, at A1. In a message posted on the Internet http://www.teleport.com/-rot/SA19.html, Mr. O'Toole stated that he had been a professor at that institute and had instructed the two judges on the agency bias/economic incentive issue.

36. See Brief for the Federal Respondents in Opposition, Ohio Forestry Ass'n (No. 97-16) (U.S., filed Dec. 16, 1997), digested at ELR BRIEFS & PLEADS, 66571 (available from the ELR Document Service, ELR Order No. 1625-A).

37. The principal briefs of the parties before the Supreme Court and the oral argument transcript are available online from Westlaw. The Brief for Petitioner is 1997 WL 772727, digested at ELR BRIEFS & PLEADS. 66592 (available from the ELR Document Service, ELR Order No. 1625-C); the Brief for the Federal Respondents is 1997 WL 772731, digested at ELR BRIEFS & PLEADS. 66571 (available from the ELR Document Service, ELR Order No. 1625-A); the Brief for [Sierra Club] Respondents is 1998 WL 35182; the Reply Brief for Petitioner is 1998 WL 59877 (available from the ELR Document Service, ELR Order No. 1625-D); and the oral argument transcript is 1998 WL 96282.

38. See Brief for [Sierra Club] Respondents, Ohio Forestry Ass'n (No. 97-16) (U.S., filed Jan. 26, 1998).

39. See id.

40. 118 S. Ct. at 1670, 28 ELR at 21120.

41. Id. at 1673, 28 ELR at 21122; see Arizonans for Official English v. Arizona, 117 S. Ct. 1055, 1068-72 (1997).

42. 387 U.S. 136, 149-54 (1967).

43. 497 U.S. 871, 20 ELR 20962 (1990).

44. Id. at 891-94, 20 ELR at 20967-68.

45. Id. at 891, 894, 20 ELR at 20967, 20968.

46. 118 S. Ct. at 1670-72, 28 ELR at 21121.

47. Id. at 1670, 28 ELR at 21121.

48. Id.

49. Id.

50. Id. at 1670-71, 28 ELR at 21121 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)).

51. Id. at 1671, 28 ELR at 21121.

52. Id. at 1670, 28 ELR at 21121 (quoting Abbott Labs., 387 U.S. at 148-49).

53. Id. at 1672, 28 ELR at 21121 (quoting Lujan v. NWF, 497 U.S. at 891, 20 ELR at 20967, and Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 82, 8 ELR 20545, 20550 (1978)).

54. Id. at 1672-73, 28 ELR at 21122.

55. Id.

56. Id. at 1670, 28 ELR at 21120 (citing Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003, 1015, 28 ELR 20434, 20437 n.3 (1998)); see also Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 18 ELR 21043, 21044 (1988).

57. 504 U.S. 555, 564-65 & n.2, 22 ELR 20913, 20915-16 & n.2 (1992).

58. See Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975); Wilderness Soc'y v. Alcock, 83 F.3d 386, 390, 26 ELR 21401, 21403; Gene R. Nichol Jr., Ripeness and the Constitution, 54 U. CHI. L. REV. 153, 172-75 (1987); 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: JURISDICTION §§ 3531.12 & 3532.1, at 51-54, 130-32 (2d ed. 1984 & Supp. 1998).

59. 118 S. Ct. at 1670, 28 ELR at 21121 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). The Solicitor General and the Ohio Forestry Association argued that these Plaintiffs did not meet the irreducible requirements of Article III on their facial challenge to the Wayne Forest Plan. See Brief for the Federal Respondents at 22-24, Ohio Forestry Ass'n (No. 97-16) (U.S. filed Dec. 16, 1997), digested at ELR BRIEFS & PLEADS. 66571 (available from the ELR Document Service, ELR Order No. 1625-A); Brief for Petitioner at 11-17, digested at ELR BRIEFS & PLEADS. 66592 (available from the ELR Document Service, ELR Order No. 1625-A); Reply Brief for the Federal Respondents at 13-14 (available from the ELR Document Service, ELR Order No. 1625-B); Reply Brief for Petitioner at 4-10 (available from the ELR Document Service, ELR Order No. 1625-D), in Ohio Forestry Ass'n (No. 97-16).

60. The Supreme Court did not expressly address the justiciability of forest plan challenges brought by plaintiffs other than environmental groups, such as timber, mining, and other industry groups who might suffer economic injury from a forest plan. However, Ohio Forestry Ass'n does cite the Abbott Laboratories principle that, where a government directive such as a forest plan requires a business to immediately "incur substantial economic costs," the directive may be justiciable. 118 S. Ct. at 1671, 28 ELR at 21121.

61. Id.

62. 497 U.S. at 894, 20 ELR at 20968 (emphasis added). Other Supreme Court precedents for the proposition that a ripe, site-specific action does not open up the entire program (here, the entire forest plan) for judicial review and injunctive relief include Lujan v. NWF, 497 U.S. at 892-93, 20 ELR at 20967-68 ("it is at least entirely certain that the flaws in the entire 'program' … cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members"), and Lewis v. Casey, 116 S. Ct. 2174, 2183-84 (1996).

63. 118 S. Ct. at 1671, 28 ELR at 21121.

64. Id. at 1671, 28 ELR at 21121.

65. Id. at 1671-72, 28 ELR at 21121. The phrase "effects themselves may change over time" could be a recognition that effects of timber harvesting dissipate over time in dynamic forest ecosystems and that the NFMA allows timber harvesting by even-aged techniques where it temporarily alters other resource values. See 16 U.S.C. § 1604(g)(3)(C), (E)(i), (F)(v), ELR STAT. NFMA § 6(g)(3)(C), (E)(i), (F)(v); Sierra Club v. Espy, 38 F.3d 792, 800-02, 25 ELR 20426, 20430 (5th Cir. 1994). The Court was briefed on the NFMA's allowance of even-aged harvesting techniques where the impact is impermanent as evidence that the NFMA did not restrict even-aged management to "exceptional circumstances" (as the Sixth Circuit had held). See Brief for Petitioner at 40-46, Ohio Forestry Ass'n (No. 97-16), digested at ELR BRIEFS & PLEADS, 66592 (available from the ELR Document Service, ELR Order No. 1625-C).

66. 118 S. Ct. at 1672, 28 ELR at 21121.

67. Id. at 1671, 28 ELR at 21121.

68. The Supreme Court may have felt that the Sixth Circuit, in its plan-level review, misinterpreted the Wayne Forest Plan. Seizing on the Sierra Club's concern that over two-thirds of the forest had been found technically suitable for timber production, the Sixth Circuit seemed to believe that the Plan called for rampant clearcutting of most of the Wayne National Forest and that the Plan "was improperly predisposed toward clearcutting." Sierra Club v. Thomas, 105 F.3d 248, 251, 27 ELR 20501, 20502 (6th Cir. 1997). In fact, the final Plan anticipated timber harvesting on a maximum of 7,835 acres of the 177,000 acre national forest over 10 years and provides for semi-primitive recreation on more than three times that area (27,000 acres). Furthermore, even less acreage than anticipated was actually harvested during the first 10 years of the Plan. Brief for Petitioner at 6-7, digested at ELR BRIEFS & PLEADS. 66592 (available from the ELR Document Service, ELR Order No. 1625-C); Reply Brief for Petitioner at 16 (available from the ELR Document Service, ELR Order No. 1625-D); Reply Brief for Federal Respondents at 15 (available from the ELR Document Service, ELR Order No. 1625-B), Ohio Forestry Ass'n (No. 97-16).

69. See Brief for Petitioner at 34-46, digested at ELR BRIEFS & PLEADS. 66592 (available from the ELR Document Service, ELR Order No. 1625-C); Reply Brief for Petitioner at 16-17 (available from the ELR Document Service, ELR Order No. 1625-D); Reply Brief for Federal Respondents at 16-19 (available from the ELR Document Service, ELR Order No. 1625-B), Ohio Forestry Ass'n (No. 97-16).

70. 118 S. Ct. at 1671, 28 ELR at 21121.

71. Id. (citing Lujan v. NWF, 497 U.S. 871, 894, 20 ELR 20962, 20968 (1990).

72. Id. at 1672-73, 28 ELR at 21122.

73. See Reply Brief for the Federal Respondents at 6-14 (available from the ELR Document Service, ELR Order No. 1625-B); Reply Brief for Petitioner at 5-13 (available from the ELR Document Service, ELR Order No. 1625-D), Ohio Forestry Ass'n (No. 97-16).

74. 118 S. Ct. at 1672, 28 ELR at 21121 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)).

75. See Reply Brief for the Federal Respondents at 6-14 (available from the ELR Document Service, ELR Order No. 1625-B); Reply Brief for Petitioner at 5-13 (available from the ELR Document Service, ELR Order No. 1625-D), Ohio Forestry Ass'n (No. 97-16).

76. 118 S. Ct. at 1671, 28 ELR at 21121.

77. Perkins v. Bergland, 608 F.2d 803, 806, 10 ELR 20070, 20072 (9th Cir. 1979) (quoting Strickland v. Morton, 519 F.2d 467, 469, 5 ELR 20678, 20679 (9th Cir. 1975)).

78. The Supreme Court made the same ripeness distinction between the two classes of plaintiffs in Reno v. Catholic Social Servs., Inc., 509 U.S. 43 (1993).

79. 118 S. Ct. at 1672, 28 ELR at 21122.

80. The statement that a "NEPA claim can never get riper" perhaps is not true with respect to a forest plan EIS, where there will be a future environmental assessment (EA) on a timber sale or other site-specific activity. There, the facts on NEPA compliance will change when the EA is issued. Arguably, a court should await the totality of NEPA documentation (the EIS plus the EA)for the same reason it awaits the totality of NFMA documentation on issues such as whether clearcutting is the optimal harvesting method for a particular timber sale. For similar reasons and because no compelling hardship befalls a plaintiff on a first-stage NEPA document, several lower courts have found that challenges to NEPA documents at the first (i.e., planning) stage are not ripe. Sierra Club v. Robertson, 28 F.3d 753, 757-61, 24 ELR 21596, 21597-99 (8th Cir. 1994); Rapid Transit Advocates, Inc. v. Southern California Rapid Transit Dist., 752 F.2d 373, 378-79 (9th Cir. 1985); National Wildlife Fed'n v. Goldschmidt, 677 F.2d 259, 263-64, 12 ELR 20771, 20773-74 (2d Cir. 1982).

81. 118 S. Ct. at 1672, 28 ELR at 21122.

82. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7, 573 n.8, 22 ELR 20913, 20918 n.7, 20918-19 n.8 (1992); see Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 664-65, 27 ELR 20098, 20100 (D.C. Cir. 1996) (en banc).

83. 83 F.3d 386, 26 ELR 21401 (11th Cir. 1996).

84. 28 F.3d 753, 24 ELR 21596 (8th Cir. 1994).

85. A partial list of these now-suspect decisions includes Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 27 ELR 20732 (9th Cir. 1997); Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401, 26 ELR 20980 (9th Cir. 1996); Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 26 ELR 20253 (8th Cir. 1995); Sierra Club v. Marita, 46 F.3d 606, 25 ELR 20514 (7th Cir. 1995); Resources Ltd. v. Robertson, 35 F.3d 1300 (9th Cir. 1993); Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 24 ELR 21264 (9th Cir. 1994); Seattle Audubon Soc'y v. Espy, 998 F.2d 699, 23 ELR 21148 (9th Cir. 1993); and Idaho Conservation League v. Mumma, 956 F.2d 1508, 22 ELR 20569 (9th Cir. 1992).

A recent Ninth Circuit decision noted, but did not resolve, "to what extent the law of this circuit conflicts with Ohio Forestry." ONRC Action v. Bureau of Land Management, 1998 WL 423413 at *4 (9th Cir. July 29, 1998). The ONRC opinion cites the Ninth Circuit opinions in Resources Ltd., Salmon River, and Idaho Conservation League for the proposition that "plaintiffs' challenge to resource management plan was ripe and plaintiffs did not have to wait for site-specific implementation" and then states that the "recent Supreme Court" decision in Ohio Forestry Ass'n "calls into doubt a plaintiff's ability to challenge an agency's adoption of a plan without site-specific actions as the focus of the challenge." Id.

86. Ohio Forestry Ass'n also renders questionable the theory in Pacific Rivers Council v. Thomas, 30 F.3d 1050, 24 ELR 21367 (9th Cir. 1994), that forest-wide injunctions may be issued every time a new species is listed under the ESA or new information becomes available, until ESA § 7 consultation is reinitiated and completed at the forest plan level. The Pacific Rivers injunction even extends to a site-specific activity that has been found to comply with ESA § 7 in an activity-level ESA consultation. Just as the Supreme Court found with respect to the Ohio Forestry Ass'n plaintiffs, it is difficult to envision what compelling hardship or injury a plaintiff suffers if forest plan-wide review is not allowed, but each ground-disturbing project must comply with the ESA and the plaintiff can challenge any project plaintiff believes does not comply with the ESA. Further, while the Ninth Circuit justified forest-wide judicial review on the ground that "the Forest Service can cite no precedent" supporting its view that forest plans "do not mandate any action and are 'merely' programmatic documents" (Pacific Rivers, 30 F.3d at 1055, 24 ELR at 21369), the Forest Service now is able to cite Ohio Forestry Ass'n, 118 S. Ct. at 1668-72, 28 ELR at 21121, and its strong preference for case-by-case judicial review. Ohio Forestry Ass'n also supports the merits proposition that a forest plan is not a continuing agency action subject to reinitiation of ESA consultation and that the Forest Service can comply with the ESA on a site-specific basis. Moreover, while 50 C.F.R. § 402.16 has been relied on to require reinitiation of ESA consultation, this regulation and other ESA § 7 regulations are not binding on other federal agencies according to the Solicitor General (see Lujan v. Defenders of Wildlife, 504 U.S. 555, 569-70, 22 ELR 20913, 20917-18 (1992)), so no judicially enforceable duty to reinitiate plan-level consultation may have been breached.

On the other hand, there are credible arguments that the ESA's citizen suit provision (16 U.S.C. § 1540(g), ELR STAT. § 11(g)) authorizes broad judicial review of any alleged ESA violation and that Tennessee Valley Auth. v. Hill, 437 U.S. 153, 8 ELR 20513 (1978), authorizes broad injunctions. Therefore, what effect the recent Supreme Court developments will have on the Pacific Rivers result remains to be seen.

87. 118 S. Ct. at 1672, 28 ELR at 21121. The NFMA legislative history suggests Congress did not intend to allow broad judicial review of forest plans. As Senator Humphrey stated when he submitted the conference report on the NFMA for Senate approval, the NFMA is "designed to get the practice of forestry out of the courts and back to the forests." 122 CONG. REC. 33835 (1976).

88. 497 U.S. at 894, 20 ELR at 20968.

89. 118 S. Ct. at 1672, 28 ELR at 21121.

90. See supra text accompanying notes 58-59.

91. At the Sixth Circuit level, Judge Batchelder concurred in the judgment, but wrote separately to disassociate herself from the majority opinion's "undocumented broadside against the Forest Service." Sierra Club v. Thomas, 105 F.3d 248, 252, 27 ELR at 20501, 20503 (6th Cir. 1997).

92. 118 S. Ct. at 1672, 28 ELR at 21121.

93. See Brief for Petitioner at 26-32, Ohio Forestry Ass'n (No. 97-16), digested at ELR BRIEFS & PLEADS. 66592 (available from the ELR Document Service, ELR Order No. 1625-C).

94. 122 CONG. REC. 33835 (1976) (remarks of Sen. Humphrey, the sponsor of the NFMA).