EARTH ISLAND INSTITUTE v. RUTHENBECK
The Ninth Circuit Court of Appeals today released an order and opinion in EARTH ISLAND INSTITUTE v. RUTHENBECK, No. 05-16975, an appeal in a civil action against the United States. The panel consisted of Mary M. Schroeder, Chief Judge, Susan P. Graber, Circuit Judge, and Kevin Thomas Duffy, Senior Judge.
SCHROEDER, Chief Judge:
I. Overview This is a government appeal from a district court judgment enjoining Forest Service regulations that govern review of decisions implementing forest plans, on the ground that the regulations were manifestly contrary to the governing statute. The Forest Service promulgated the challenged regulations pursuant to the Forest Service Decisionmaking and Appeals Reform Act (”ARA”), Pub. L. 102-381, tit. 111, § 322, 106 Stat. 1419 (1992) (codified at 16 U.S.C. § 1612 note). In a cross-appeal, the environmentalist plaintiffs Earth Island Institute et al. challenge the four regulations the district court held were valid. The statute pertains to procedures relating to public comment, notice, and administrative appeal of proposed forest management actions. The government raises standing and ripeness issues. We agree with the district court that plaintiffs have established standing. But because only two aspects of the regulations, 36 C.F.R. §§ 215.12(f) and 215.4(a) have actually been applied to a proposed project, we hold that only those regulations are ripe for review. We affirm the district court’s judgment that 36 C.F.R. §§ 215.12(f) and 215.4(a) conflict with the Appeals Reform Act and affirm the nationwide injunction barring their application. We remand the judgment and injunction with respect to the remaining regulations to the district court with instructions to vacate for lack of a controversy ripe for review. II. Background Plaintiffs, Earth Island Institute, Sequoia Forestkeeper, Heartwood, Inc., Center for Biological Diversity, and the Sierra Club (collectively “Earth Island”) are non-profit environmental organizations. To establish their standing, plaintiffs rely on the declaration of Jim Bensman, an employee and . . .
The panel has voted to deny the petition for rehearing. Chief Judge Schroeder and Judge Graber have voted to deny the petition for rehearing en banc, and Judge Duffy has so recommended. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it. The petitions for rehearing and rehearing en banc are DENIED. Plaintiffs-Appellees’ motion for clarification with regard to the applicability of the opinion to both 36 C.F.R. §§ 215.12(f) and 215.4(a) and inapplicability of the opinion to 36 C.F.R. § 215.18(b)(1) is GRANTED. The opinion at Earth Island Institute v. Ruthenbeck, 459 F.3d 954 (9th Cir. 2006), is amended and, in the interest of clarity, the attached amended opinion is substituted in its place. No further petitions for rehearing or rehearing en banc may be filed. . . .