Environmentalists face high hurdle in Sequoia forest dispute

McClatchy NewspapersOctober 8, 2008 

WASHINGTON — A Sequoia National Forest dispute reached the Supreme Court on Wednesday, giving conservative justices a chance to limit public challenges to federal land-management decisions.

Born on Burnt Ridge in mountainous Tulare County, Calif., the dispute now reaches nationwide. During hour-long oral argument, several justices seemed prepared to block activists from suing the Forest Service unless they could point to a specific forest-by-forest harm.

"They are just people interested in forests throughout the United States," Associate Justice Antonin Scalia said of activists. "That's quite different from saying, 'I am about to suffer harm, imminent harm, to me."

The case, Summers v. Earth Island Institute, was one of two significant environmental cases considered Wednesday morning. The other case pit whale safety against Navy training requirements, and it drew a larger crowd. Both cases, though, reached justices who sounded notably sympathetic to Bush administration arguments.

The administration argues that activists should only be allowed to challenge specific forest-by-forest decisions, rather than overall Forest Service policies in the abstract. This would complicate business for environmentalists.

"The standing has to focus on the particular site-specific place where the individual has visited," Deputy Solicitor General Edwin Kneedler argued.

Chief Justice John Roberts seemingly agreed that environmentalists faced a "high hurdle . . . to surmount" because of prior Supreme Court decisions restricting lawsuits to federal agency decisions that have been "flushed out by some concrete action."

Summers v. Earth Island Institute started with a 238-acre salvage-logging project planned following a devastating 2002 fire swept through the Sequoia National Forest. Using new rules imposed by the Bush administration, the Forest Service declared that no public comment period or administrative appeal process was needed for the Burnt Ridge project.

The administration determined that timber projects under 250 acres, forest thinning projects under 1,000 acres and controlled burns under 4,500 acres were all small enough to be exempt from the standard public comment and appeal proceedings.

Environmentalists sued, and the Forest Service agreed to withdraw the Burnt Ridge project. Even so, a federal judge imposed a nationwide injunction that blocks the Forest Service's exemptions for small projects.

The Bush administration argues the judge's order should be dissolved and the legal challenge dismissed since the original Burnt Ridge dispute has been taken care of.

While Associate Justice Ruth Bader Ginsburg raised objections, Kneedler argued that only "on-the-ground activity" and not mere "procedural regulation" could incite legal challenge.

This means activists such as Kernville resident Ara Marderosian might challenge how the Burnt Ridge project was handled, but not how the Forest Service handled public comments and appeals more generally. Environmentalists say they need to be able to challenge the nationwide rules.

"These are being applied on every forest on an ongoing basis," environmental attorney Matt Kenna told the court.

A decision is expected later in the court's term.

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