Nos. 05-16975, 05-17078 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EARTH ISLAND INSTITUTE et al., Plaintiffs/Appellees/Cross- Appellants, v. NANCY RUTHENBECK, District Ranger, Hot Springs Ranger District, Sequoia National Forest, United States Forest Service et al., Defendants/Appellants/Cross-Appellees. ON APPEAL FROM THE UNTIED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA PLAINTIFFS/APPELLEES/CROSS-APPELLANTS PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC Submitted November 30, 2006 Matt Kenna Western Environmental Law Center 679 E. 2 nd Ave., Suite 11B Durango, CO 81301 (970) 385-6941 mattkenna@gmail.com
TABLE OF CONTENTS FED. R. APP. P. 35(b)(1) STATEMENT...1 FACTS AND PROCEDURAL HISTORY...2 ARGUMENT I. The Panel Improperly Determined that the Facial Rule Challenges were Unripe for Review...6 A. The Panel s Decision Conflicts with U.S. Supreme Court and Ninth Circuit Precedent...6 B. The Panel s Decision Conflicts with Established Precedent from the Sister Circuits on a Matter of Exceptional Importance, the Reviewability of Nationwide Regulations.10 II. The Panel Should, At a Minimum, Modify Two Aspects of its Opinion...13 A. The Panel Should Vacate the Application of its Judgment as to 36 U.S.C. 215.18(b)(1) Because the Forest Service Did Not Appeal That Claim so the Court Had No Jurisdiction..13 B. The Opinion should be Amended to Clarify that 36 C.F.R. 215.4(a) Remains Enjoined...14 CONCLUSION...15 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION...16 CERTIFICATE OF SERVICE...17
ADDENDA: Addendum A: Addendum B: Declaration of Jim Bensman, from Federal Appellants Excerpts of Record Opening Brief for the Federal Defendants- Appellants (excerpts) Addendum C: Order, The Wilderness Soc y v. Rey, CV 03-119- M-DWM (D. Mont. Apr. 3, 2006) (excerpts)
TABLE OF AUTHORITIES CASES: Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)...4,7,8 Better Gov t Assoc. v. Dept. of State, 780 F.2d 86 (D.C. Cir. 1986)...12 Earth Island Institute v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal. 2005)...2-3 n.1,4 Ecology Ctr. v. U.S. Forest Serv., 192 F.3d 922 (9 th Cir. 1990)...9 Erlin v. United States, 364 F.3d 1127 (9 th Cir. 2004)...13 Gardner v. Toilet Goods Ass n, 387 U.S. 167 (1967)...7 Hotel Employees and Restaurant Employees Int. Union v. Nevada Gaming Comm., 984 F.2d 1507 (9 th Cir. 1993)...8 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)...8-9,11 n.3 Nat l Assoc. of Home Builders v. U.S. Army Corps of Engineers, 440 F.3d 459 (D.C. Cir. 2006)...11 Nat l Mining Ass'n v. Fowler, 324 F.3d 752 (D.C. Cir.2003)...11 Nat l Park Hospitality Ass n v. Dep t of the Interior, 538 U.S. 803 (2003)...9,11 n.3 Nat l Treasury Employees Union v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006)...11-12 Nat'l Treasury Employees Union v. Cornelius, 617 F. Supp. 365 (D. D.C.1985)...4 -i-
Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726 (1998)...8-9 Sullivan v. Zelby, 493 U.S. 521 (1990)...7 The Wilderness Society v. Norton, 434 F.3d 584 (D.C. Cir. 2006)...14 The Wilderness Soc y v. Rey, CV 03-119-M-DWM (D. Mont. Apr. 3, 2006)...5, Addendum C Toilet Goods Ass n v. Gardner, 387 U.S. 158 (1967)...7 Triple G Landfills Inc. v. Board of Commissioners of Fountain County, Indiana, 977 F.2d 287 (7 th 1992)...12 Western Oil & Gas Assoc. v. EPA, 633 F.2d 803 (9 th Cir. 1980)...8 Whitman v. Am. Trucking Ass ns, Inc., 531 U.S. 457 (2001)...8 Wininger v. S.I. Management LP, 301 F.3d 1115 (9 th Cir. 2002)...13-14 STATUTES: Pub. L. No. 102-381, 106 Stat. 1374 (Oct. 5, 1992), Forest Service Decision Making and Appeals Reform Act ( ARA ), Title III, 322, 106 Stat. at 1419, appended to 16 U.S.C.A. 1612...passim (c)...15 Administrative Procedure Act, 5 U.S.C. 701-706...3 National Environmental Policy Act ( NEPA, 42 U.S.C. 4321 et seq...2 n.1,15 -ii-
CODE OF FEDERAL REGULATIONS: 36 C.F.R. Part 215...2 215.4(a)...14-15 215.12(f)...13-15 215.18(b)(1)...13-14 OTHER AUTHORITIES: Fed. R. App. P. 35(b)(1)...1 Circuit Rule 40-1(a)...16 -iii-
FED. R. APP. P. 35(b)(1) STATEMENT The plaintiffs/appellees/cross-appellants Earth Island Institute et al. (collectively Earth Island ) now petition the panel for rehearing, and suggest that the appeal be reheard en banc, regarding the panel s holding that Earth Island s claims presenting facial challenges to final regulations published in the Code of Federal Regulations were unripe, for the following reasons: A) The panel s holding conflicts with both decisions of the United States Supreme Court and this Court, all holding that facial challenges to regulations are ripe except in unusual circumstances (which are not alleged to be present in this appeal); and B) The panel s holding presents a question of exceptional importance, namely whether final, published regulations may be challenged facially, rather than limited only to as-applied challenges, especially where, as here, the regulations have been applied numerous times and the challenges present purely legal issues requiring no factual development. The panel s holding squarely conflicts with established precedent from the other circuits, especially the D.C. Circuit.
FACTS AND PROCEDURAL HISTORY Earth Island brought a facial challenge to eight regulatory provisions promulgated by the defendants/appellants/cross-appellees United States Forest Service (collectively Forest Service ) in 2003, implementing the Forest Service Decision Making and Appeals Reform Act, Pub. L. 102-381, Title III, 322, 106 Stat. 1419 (Oct. 5, 1992) ( ARA ), which regulations are published in 36 C.F.R. Part 215. These challenged regulations limit the type of land management decisions of the Forest Service subject to public notice, comment and administrative appeal. These challenges were raised in a suit which also raised sitespecific claims under the ARA and other statutes regarding a particular timber sale, although those site-specific claims were settled by the time the facial ARA claims were litigated. While one of the challenged provisions, the categorical exclusion provision, was applied in the timber sale, the other regulations were not. 1 However, the other regulations have been applied regularly to the 1. Earth Island s challenges to the eight regulatory provisions were summarized by the district court: (1) the regulations categorically excluding certain decisions from National Environmental Policy Act ( NEPA ) analysis are unlawfully exempted from appeal;(2) the regulation exempting 2
public, including to the Earth Island parties. FS Excerpts of Record at 98-102 (Addendum A- Declaration of Jim Bensman, discussing how his plaintiff group Heartwood has been affected by the implementation of each and every challenged regulation). The district court rejected the Forest Service s argument that the challenges were unripe, finding: Here, there can be little doubt that the eight regulations challenged by Plaintiffs are "final" actions by the Forest Service for purposes of the [Administrative Procedure Act, 5 U.S.C. 701-706]. The regulations are the Forest Service's definitive position on how to best implement the ARA and have been enforced on numerous occasions. Further, the impact of the regulations on Plaintiffs are sufficiently direct and immediate as to render the issue[s] appropriate for judicial review at this decisions signed by the Secretary and Under Secretary of Agriculture from comment and appeal violates the [ARA]; (3) the ARA does not allow the Forest Service to limit appeal standing to those who have filed "substantive comments;" (4) the "most effective timing" provision for public comment violates the ARA; (5) the ARA does not permit the Forest Service to intentionally refuse to decide an appeal; (6) "emergency situations" may not be defined to include pure economic losses to the government; (7) the ARA does not permit regional foresters to make emergency stay exemption determinations; and (8) the regulations improperly shorten the stay period by five days. Earth Island Institute v. Pengilly, 376 F. Supp. 2d 994, 1003-04 (E.D. Cal. 2005). The first-listed challenge is the categorical exclusion provision. 3
stage. Abbott Lab[oratories v. Gardner, 387 U.S. 136, 152 (1967)]. "There is no reason why the Court must wait until a[n] [organization] member loses his right to appeal before considering the validity of these regulations." Nat'l Treasury Employees Union v. Cornelius, 617 F. Supp. 365, 367 (D.D.C.1985) (finding ripe for decision a challenge to the Office of Personnel Management's rules on appeal procedures). The purpose of the finality requirement would not be served by disallowing a facial challenge in this context. Were the Court to rule that these regulations are not ripe for decision because they are being facially challenged, Plaintiffs could be faced with bringing multiple lawsuits in multiple jurisdictions in order to challenge the regulations as they are applied to specific projects-- and the Forest Service faced with defending against them. This facial challenge promotes judicial economy and is sufficiently particular to avoid judicial foray into the hypothetical. Plaintiffs' challenge to the eight Forest Service regulations implementing the ARA is ripe for decision. Earth Island Institute, supra, 376 F. Supp. 2d at 1002. The district court set aside the categorical exclusion rule, as well as three other rules, and affirmed the four other challenged rules. See FS Op. Brf. at 12-14 (Addendum B). The Forest Service appealed, and Earth Island cross-appealed. On appeal, the panel found that only the challenge to the categorical exclusion rule was ripe, affirmed the district court s vacature of that provision on the merits of the claim, and vacated the district court s ruling on the other three regulations which the district court had set aside. 4
Another district court has held, in a case which presents facial challenges to three of the same regulations as are at issue in this appeal, that the challenges were ripe: In this case, those subject to the regulation, i.e., Plaintiffs who make use of the notice and comment and appeals procedures, have found their day-to-day affairs impacted already by the regulation.... Waiting until a particular project has been excluded will not provide the Court with more information about the merits of this claim but will result in increased harm to Plaintiffs. The Wilderness Soc y v. Rey, CV 03-119-M-DWM (D. Mont. Apr. 3, 2006) at 12-13. 2 The Forest Service has now filed a petition for rehearing and a suggestion for rehearing en banc on ripeness and standing grounds as to the categorical exclusion rule, and Earth Island now files this cross petition challenging the panel s ripeness decision as to the other regulatory provisions. 2. Relevant excerpts of the opinion are provided at Addendum C; the full opinion is attached to Earth Island s reply brief and is also available on the District of Montana s ECF website. 5
ARGUMENT I. The Panel Improperly Determined that the Facial Rule Challenges were Unripe for Review The panel determined that other than the categorical exclusion rule which was utilized by the Forest Service in the challenged timber sale accompanying Earth Island s facial challenges, Earth Island has not shown that the other challenged regulations were applied in the context of the Burnt Ridge Timber Sale or any other specified project, and that therefore challenges to those regulations were not ripe. Op. at 9331 (emphasis added). In so finding, the panel essentially ruled that a facial challenge to final agency regulations published in the Code of Federal Regulations can not be brought. However, this directly contradictions previous decisions of this Court, other Courts of Appeal, and the Supreme Court. Further, this is a matter of exceptional importance. Therefore, rehearing is warranted. A. The Panel s Decision Conflicts with U.S. Supreme Court and Ninth Circuit Precedent The U.S. Supreme Court and this Court have time and time again ruled that facial challenges to final regulations are ripe once those regulations are published in the Code of Federal Regulations, absent 6
unusual circumstances (and there has been no allegation that such unusual circumstances are present here). This is true even in the context of pre-enforcement challenges, let alone as here where the dismissed claims have already been enforced countless times. A listing of some representative cases that the panel s decision contradicts follows: Sullivan v. Zelby, 493 U.S. 521, 536-37 n.18 (1990) ( We fail to see why each [plaintiff] should be compelled to raise a separate, as-applied challenge to the regulations, or why a facial challenge is not a proper response to the systemic [enforcement of the challenged regulations]. ) Abbott Laboratories v. Gardner, 387 U.S. 136, 139-151 (1967) (general rule that final agency regulations are ripe for judicial review when issued even in pre-enforcement context; particularly true where, as here, resolution of the regulations validity relies on purely legal issues.). See also Gardner v. Toilet Goods Ass n, 387 U.S. 167 (1967) (companion case finding regulation ripe for review); compare companion case Toilet Goods Ass n v. Gardner, 387 U.S. 158, 160-64 (1967) (ripeness not found for this particular regulation in this particular context because the regulation there only may under 7
certain circumstances have been enforced, requiring post-enforcement review) (emphasis in original). Whitman v. Am. Trucking Ass ns, Inc., 531 U.S. 457, 458 (2001) (where, as here, a party challenges a regulation s facial conformity with its authorizing statute, [t]he question before [the Court] is purely one of statutory interpretation that would not benefit from further factual development of the issues presented. ). Western Oil & Gas Assoc. v. EPA, 633 F.2d 803, 807-808 (9 th Cir. 1980) (challenge to final regulations is ripe, citing inter alia Abbott Laboratories, supra). Hotel Employees and Restaurant Employees Int. Union v. Nevada Gaming Comm., 984 F.2d 1507, 1512-13 (9 th Cir. 1993) (facial challenge to final regulations is ripe, citing inter alia Abbott Laboratories, supra). These cases finding challenges to final, published regulations to be ripe must be contrasted with programmatic challenges to large collections of individual agency actions, as in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) or to programmatic land use plans as in Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726 (1998), where ripeness was not found. For instance, in Lujan, the Court found that 8
[Plaintiffs] challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of 702, much less a "final agency action" within the meaning of 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action"--much less a "final agency action"--than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 497 U.S. at 890 (emphasis added). See Ohio Forestry at 733 (challenge to U.S. Forest Service management plan not ripe); Ecology Ctr. v. U.S. Forest Serv., 192 F.3d 922, 925 (9 th Cir. 1990) (challenge to a general monitoring [program, which is not] an action that marks the culmination of a decision making process not ripe for review); Nat l Park Hospitality Ass n v. Dep t of the Interior, 538 U.S. 803, 810-11 (2003) (challenge was to nothing more than a general statemen[t] of policy ). 9
Thus, where as here plaintiffs challenge final regulations published in the Code of Federal Regulations which mark the culmination of the agency decisionmaking process, and merely pose the purely legal question of whether such regulations comply with statutory authority, they are ripe for review and the panel erred by finding to the contrary. As will be explained, decisions from other circuits, especially the District of Columbia Circuit which entertains a large number of such challenges, confirms this conclusion, and rehearing is necessary to keep the Ninth Circuit from becoming out of step with the other circuits in this exceptionally important matter. B. The Panel s Decision Conflicts with Established Precedent from the Sister Circuits on a Matter of Exceptional Importance, the Reviewability of Nationwide Regulations The panel s decision conflicts with established precedent from the other circuits, particularly the District of Columbia Circuit. Further, the reviewability of final regulations of national application is a matter of exceptional importance, warranting rehearing. The following opinions explain that the sister circuits find that challenges to final, published regulations are ripe for review absent unusual circumstances (not alleged to be present in this appeal): 10
Nat l Assoc. of Home Builders v. U.S. Army Corps of Engineers, 440 F.3d 459, 464-65 (D.C. Cir. 2006) (regulatory challenge ripe where the issue was the faithful application of the regulation [which plaintiff] claims facially exceeds the agencies' statutory authority, and is not intertwined with how the Commission might exercise its discretion in the future. Id. (citations omitted; emphasis in original citation). 3 Nat l Mining Ass'n v. Fowler, 324 F.3d 752, 756-57 (D.C. Cir.2003) (facial challenge to regulations ripe for review: [W]e ask first whether the issue raised in the petition for review presents a purely legal question, in which case it is presumptively reviewable. ). Nat l Treasury Employees Union v. Chertoff, 452 F.3d 839, 854-55 (D.C. Cir. 2006) (facial rule challenge to majority of challenged rules was ripe, including one determining that certain subjects are not 3. Earth Island did not bring, and the panel made no finding, that the claims in this appeal raised anything but purely legal challenges to the faithful application of the regulations. See Op. at 9329-30. Instead, the panel relies on cases such as Lujan and Nat l Park, supra, which as discussed did not involve challenges to final regulations published in the Code of Federal Regulations, but rather were challenges to collections of individual agency actions or programmatic land management plans. Compare Op. at 9330 with discussion supra at 8-9. 11
subject to collective bargaining ; only exception was penalty mitigation rule which could benefit from factual application). Better Gov t Assoc. v. Dept. of State, 780 F.2d 86, 92-96 (D.C. Cir. 1986) (facial rule challenges were ripe and would not benefit from deferring issues for further factual development). Triple G Landfills Inc. v. Board of Commissioners of Fountain County, Indiana, 977 F.2d 287, 288-91 (7 th 1992) (facial challenge ripe: This lawsuit... mounts a facial attack upon the validity of the ordinance itself, not a challenge to a particular administrative decision reached thereunder. The issues posed are purely legal.... ). Accordingly, because the panel s decision conflicts with the ripeness jurisprudence of the sister circuits regarding facial challenges to final, published regulations, rehearing is warranted. This is an exceptionally important matter because if the panel s decision stands, facial challenges to regulations of nationwide application may no longer be brought in the Ninth Circuit, and would need to be brought in other circuits instead, potentially prejudicing people who live within the Ninth Circuit. 12
II. The Panel Should, At a Minimum, Modify Two Aspects of its Opinion A. The Panel Should Vacate the Application of its Judgment as to 36 U.S.C. 215.18(b)(1) Because the Forest Service Did Not Appeal That Claim so the Court Had No Jurisdiction The panel instructed the district court to vacate its injunction regarding the remaining regulations besides 36 C.F.R. 215.12(f), due to its ripeness holding. Op. at 9337. However, the Court had no jurisdiction over one of the regulations, 36 U.S.C. 215.18(b)(1) (plaintiffs Claim 12), because the Forest Service did not appeal the district court s ruling as to that regulation. See FS Op. Brf. at 13 n.6 (Addendum B). 4 Because the Forest Service did not appeal the district court s ruling as to this regulation, this Court had no jurisdiction to set aside the district court s final ruling. Erlin v. United States, 364 F.3d 1127, 1130 (9 th Cir. 2004) ( The United States did not appeal, and that decision became final. We therefore have no occasion to examine the correctness of the district court's decision.... ); Wininger v. S.I. 4. This regulation permitted the Forest Service to wait five days after deciding an appeal before sending the decision to appellants, shortening the effective time of the 15-day post-decision stay provision of the ARA by 5 days. See ARA (e)(2). 13
Management LP, 301 F.3d 1115, 1122 (9 th Cir. 2002) ( The Price Objectors failed to appeal the order approving the settlement class; therefore this court has no jurisdiction to consider the question. ) (citation omitted); The Wilderness Society v. Norton, 434 F.3d 584, 597 (D.C. Cir. 2006) ( The Government did not cross-appeal the District Court's orders covering five claims on which relief was granted to TWS. We offer no judgment on these matters. Government counsel... conceded that no review was properly sought on these matters. ). Accordingly, the panel should modify its judgment by stating that it does not affect the district court s final judgment setting aside 36 U.S.C. 215.18(b)(1). B. The Opinion should be Amended to Clarify that 36 C.F.R. 215.4(a) Remains Enjoined The panel only referred to 36 C.F.R. 215.12(f) in affirming the district s court s invalidation of the regulatory provision exempting categorically excluded decisions from public notice, comment, and appeal. Op. at 9331-37. However, another regulatory provision, 36 C.F.R. 215.4(a), was also involved in this issue, with that regulation exempting Forest Service decisions from notice and comment procedures, while section 215.12(f) exempted the same decisions from 14
administrative appeal. See FS Op. Brf. at 12 (Addendum B). The panel s failure to mention section 215.4(a) appears to be an oversight. Section 215.4(a) exempted Forest Service decisions categorically excluded from NEPA procedures from public notice and comment, while section 215.12(f) exempted them from the Forest Service s administrative appeal procedures. It would not make sense to set aside section 215.12(f) and not section 215.4(a), as a Forest Service decision may not be appealed unless the appellant has provided public comment or otherwise notified the Forest Service of his interest in the decision. See ARA (c). Further, there is no evidence in the panel s opinion that it meant to affirm the district court s opinion as to section 215.12(f) and not section 215.4(a), and the same reasoning applies to both. Accordingly, the opinion should be clarified to reflect that the panel was also affirming the district court s vacature of section 215.4(a). CONCLUSION For these reasons, panel rehearing, and/or rehearing en banc, should be granted. 15
Respectfully submitted November 30, 2006. Matt Kenna, CO Bar # 22159 Western Environmental Law Center 679 E. 2 nd Ave., Suite 11B Durango, CO 81301 (970) 385-6941 mattkenna@gmail.com Attorney for Plaintiffs/Appellees/ Cross-Appellants CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION I certify that pursuant to Circuit Rule 40-1(a), this petition for panel rehearing/petition for rehearing en banc is proportionately spaced, has a typeface of 14 points or more and contains 3,065 words (petitions and answers must not exceed 4,200 words). Matt Kenna 16
CERTIFICATE OF SERVICE I certify that on November 30, 2006, I sent a copy of this document to the following counsel of record by First-Class, U.S. Mail, and by email: Katherine Hazard, Attorney Appellate Section Environment & Natural Resources Division Department of Justice Box 23795, L Enfant Plaza Station Washington, D.C. 20026-3795 Katherine.Hazard@usdoj.gov Thomas R. Lundquist Crowell & Moring LLP 1001 Pennsylvania Ave., NW Washington, DC 20004-2595 tlundquist@crowell.com Matt Kenna 17
ADDENDA Addendum A: Addendum B: Declaration of Jim Bensman, from Federal Appellants Excerpts of Record Opening Brief for the Federal Defendants- Appellants (excerpts) Addendum C: Order, The Wilderness Soc y v. Rey, CV 03-119- M-DWM (D. Mont. Apr. 3, 2006) (excerpts)