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U.S. Supreme Court Rejects Right to File Lawsuit Based on Affidavit of Frequent National Forest Visitor Over Now-Cancelled Logging Plan

By Debra Cassens Weiss, ABA Journal, http://www.abajournal.com

3/3/2009

The U.S. Supreme Court has ruled that environmental groups don't have standing to challenge Forest Service comment regulations for small projects based on an affidavit of a member who frequently visits the National Forests. The 5-4 decision (PDF) will make it more difficult to challenge federal regulations governing timber sales and other forest policies, the Associated Press reports. The case before the Supreme Court concerned a regulation exempting smaller fire-rehabilitation planning projects from public input requirements. The Sierra Club and four other environmental groups had challenged both the public comment exemption and Forest Service plans to salvage timber from a fire in the Sequoia National Forest, but settled the latter suit. As a result of the settlement, the plaintiffs did not suffer a concrete injury giving them standing to pursue the comments case, the Supreme Court ruled. Justice Antonin Scalia wrote the majority opinion. "The requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute," he wrote. Scalia said the environmental groups had submitted two affidavits before the settlement was reached by members who claimed to be affected by the Forest Service decisions. The first affidavit, he said, was related to the settled case and could not be used to challenge the comment regulations. The second affidavit was filed by an environmentalist, Jim Bensman, who said he had visited many National Forests and planned to visit many more in the future. Scalia wrote that the affidavit required too many assumptions. "Here we are asked to assume not only that Bensman will stumble across a project tract unlawfully subject to the regulations, but also that the tract is about to be developed by the Forest Service in a way that harms his recreational interests, and that he would have commented on the project but for the regulation," Scalia wrote. Scalia rejected a standing test offered by the dissenters that would rely on a realistic threat that the challenged activity would reoccur and cause harm to the plaintiffs in the reasonably near future. "The dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization's self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury," he wrote. "This novel approach to the law of organizational standing would make a mockery of our prior cases."

The case is Summers v. Earth Island Institute.

http://www.supremecourtus.gov/opinions/08pdf/07-463.pdf

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http://www.mcclatchydc.com/260/story/63194.html

"The Burnt Ridge project is now off the table," Justice Antonin Scalia noted from the bench Tuesday morning. "The parties settled, the timber sale is not going to happen and the (environmentalists) can no longer claim that they are at risk of injury from it."

The 15,000-member Earth Island Institute had joined others, including the much-smaller Sequoia ForestKeeper, with 100 or so members, to challenge Forest Service plans for logging on Burnt Ridge. The 238-acre region burned during a large forest fire in the summer of 2002.
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more background:

http://www.mcclatchydc.com/homepage/story/50002.html

http://www.sequoiaforestkeeper.org/pressreleases.html

http://www.martenlaw.com/news/?20090305-env-groups-rights-limited