Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding D.C. No. CV-03-00119-DWM.
The opinion of the court was delivered by: McKEOWN, Circuit Judge
Argued and Submitted June 9, 2010 -- Portland, Oregon.
Before: Cynthia Holcomb Hall, David R. Thompson, and M. Margaret McKeown, Circuit Judges.
The Forest Service Decisionmaking and Appeals Reform Act ("ARA"), requires the Secretary of Agriculture to establish notice and comment procedures through the Chief of the United States Forest Service for proposed decisions related to "projects and activities implementing land and resource management plans." Pub. L. No. 102-381, § 322, 106 Stat. 1419 (1992) (codified as 16 U.S.C. § 1612 note). The Act also requires the Secretary to modify the appeals procedure for decisions concerning these projects. Id. In 2003, the Forest Service revised the regulations implementing the ARA to significantly limit the scope and availability of notice, comment, and appeals procedures. In response, several environmental groups, The Wilderness Society, American Wildlands, and Pacific Rivers Council (together "TWS"), asserted facial challenges against three sections of the revised regulations, alleging that they are inconsistent with the ARA. The district court agreed and granted TWS declaratory and injunctive relief.
Given intervening case law, we dismiss TWS's claims as non-justiciable.
The National Forest Management Act of 1976 directs the Forest Service to develop "land and resource management plans for units of the National Forest System." 16 U.S.C. § 1604(a). Before 1992, although it was not statutorily required, the Forest Service provided a post-decisional appeals process for certain decisions related to these plans. Ultimately, the Forest Service discontinued the process because it was too costly to maintain. In 1992, partly as a result of negative public reaction to the cancellation, Congress enacted the ARA. The Forest Service then adopted regulations implementing the legislation.
In 2003, the Forest Service issued revised regulations. One month later, TWS challenged three sections of the revised regulations claiming that the provisions impermissibly limit the scope of notice, comment, and appeals. Because the ARA mandates the unqualified application of notice, comment, and appeals procedures to "projects and activities implementing land and resource management plans," ARA § 322(a), TWS contends that the regulations are at odds with the statute.
Section 215.20(b) of the regulations exempts decisions of the Secretary and Under Secretary (together "the Secretary") from notice, comment, and appeals requirements:
Decisions of the Secretary of Agriculture or Under Secretary, Natural Resources and Environment are not subject to the notice, comment, and appeal procedures set forth in this part. A decision by the Secretary or Under Secretary constitutes the final administrative determination of the Department of Agriculture.
Section 215.13(a) limits the right of appeal to those who have submitted substantive comments:
Individuals and organizations who submit substantive written or oral comments during the 30-day comment period for an environmental assessment, or 45-day comment period for a draft environmental impact statement (§ 215.6, 40 CFR 1506.10; FSH 1909.15, Chapter 20), except as provided for in paragraph (c) of this section, may file an appeal.
Finally, § 215.12(f) exempts from appeal those projects that the Forest Service finds not to have a significant effect on the environment and that are thus categorically excluded from certain National Environment Policy Act ("NEPA") requirements:
The following decisions and actions are not subject to appeal under this part . . . : (f) Decisions for actions that have been categorically excluded from documentation in an [environmental assessment] or [environmental impact ...