DOJ Seeks to Blunt District Judges' Nationwide Rulings

Western federal judges have repeatedly enjoined environmental laws in recent years at the behest of groups opposed to Bush administration forest, land and conservation policies. The administration has had enough.

Western federal judges have repeatedly enjoined environmental laws in recent years at the behest of groups opposed to Bush administration forest, land and conservation policies.

The administration has had enough.  The Justice Department is asking the Supreme Court to hear a case involving a nationwide injunction against the Forest Service issued by a judge in the 9th U.S. Circuit Court of Appeals.

The San Francisco court is a favorite filing ground for environmental groups, as judges there are seen as more liberal and likely to block regulations that limit public input or access. In recent years, 9th Circuit judges have been at the center of the battle over environmental regulations, issuing rulings reinstating the Clinton-era roadless rule and enjoining the Forest Service's national planning rule, among others.

"In the last few years more cases are filed in the 9th Circuit and they seem to particularly enjoy filing nationwide injunctions," said Chip Murray, deputy general counsel of the American Forest & Paper Association.

"It's basically a question of the Supreme Court, if they take the case, making a statement about what does jurisdiction mean," Murray said. "If a court has a matter does it have to be concerned about the limit of its jurisdiction?"

The Summers v. Earth Island Institute, formerly Earth Island Institute v. Ruthenbeck, case stems from 2003 Forest Service rules that limited appeals and public comment on categorical exclusions of salvage logging and other projects, violating the 1992 Appeals Reform Act.

Part of President Bush's Healthy Forests Initiative, the rules included a provision mandating that only individuals and organizations that submit "substantive" written or oral comments during public comment periods could file administrative appeals. Previously, any citizen could file an appeal within 45 days of a Forest Service decision.

In 2005, Judge James Singleton of the district court in Alaska sided with environmental groups and issued a nationwide injunction against the Forest Service, and the 9th Circuit upheld the injunction last year.

"The 9th Circuit's decision authorizes a single district judge in a garden-variety ... suit to exercise the same broad power to vacate in their entirety agency regulations that Congress only rarely confers upon the District of Columbia Circuit," DOJ wrote in its petition.

Environmentalists' standing
In a reply brief with the Supreme Court, Matt Kenna of the Western Environmental Law Center, representing the environmental groups, argued Singleton's rulings were not beyond the pale.

"The rulings ... merely restored the regulatory status quo that was in place before the challenged rules were promulgated in 2003, which only requires the Forest Service to subject its substantive land-use decisions to public notice, comment and administrative appeal, with the prior rules' emergency exemptions from these requirements intact," Kenna wrote.

DOJ also argues the environmentalists lack standing because the regulations were not ripe for judicial review before they were applied to the specific project challenged in the case.

Earth Island Institute, Sequoia Forestkeeper, Heartwood, Center for Biological Diversity and Sierra Club filed their lawsuit after the Forest Service issued a decision in September 2003 to allow salvage logging of 238 acres in the Sequoia National Forest that had been burned in the McNally fire the previous summer. The Burnt Springs sale was one of the first the agency approved under the "categorical exclusion" rules.

The parties entered into a partial settlement of the Burnt Ridge case in July 2004, DOJ notes. The 9th Circuit's ruling was based on the assumption that the court should have reviewed the Forest Service's regulations rather than the specific timber sale the environmentalists challenged, DOJ adds.