Bensman, Jim v. US Forest Service ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4041
JIM BENSMAN, MARK DONHAM and
HEARTWOOD, INCORPORATED,
Plaintiffs-Appellants,
v.
UNITED STATES FOREST SERVICE
and RANDY MOORE,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 1062—J.P. Stadtmueller, Judge.
____________
ARGUED SEPTEMBER 13, 2004—DECIDED JUNE 2, 2005
____________
Before BAUER, RIPPLE and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. Through its employees, Mark
Donham and Jim Bensman, Heartwood, Inc., an Indiana
nonprofit concerned with preserving the national forests,
commented on several projects of the United States Forest
Service (“Forest Service” or “the Service”). When notified of
the decision of the Service with respect to these projects, it
sought, through the same employees, to file an appeal in
2 No. 03-4041
each of those matters. In filing its appeals, Heartwood relied
upon the Service’s statement as to the due date for the
filings. That statement was wrong; the appeals were a day
late, and the Service therefore refused to consider them.
Invoking the Administrative Procedures Act (“APA”),
5 U.S.C. §§ 701-706, Heartwood then filed this action in the
district court. It sought declaratory and injunctive relief to
require that the Service consider its appeals. The district
court dismissed the action; it held that Mr. Donham lacked
standing to assert one claim and that neither he nor
Mr. Bensman could assert equitable tolling or equitable
estoppel with respect to the other. For the reasons set forth
in this opinion, we affirm the judgment of the district court.
I
BACKGROUND
A. Facts
We shall limit this rendition to those facts pertinent to the
issues before us. The Forest Service invited public comment
with respect to certain project decisions for the Mark Twain
National Forest in Missouri (the “Chadwick Trails project”)
and the Hiawatha and Ottawa National Forests in Michigan
(the “Pole Lake project” and “Plantation Lakes project,” re-
spectively). Heartwood, through its employees, Mr. Bensman
and Mr. Donham, submitted comments to the Service about
the advisability of certain proposed actions with respect to
each of these projects.
When the Forest Service made its initial decision with re-
spect to each project, it complied with statutory and regulatory
requirements by mailing to interested parties information
about how to appeal the Service’s determinations. Because
Mr. Donham and Mr. Bensman had participated in the
initial comment period, they received this notification. Re-
No. 03-4041 3
lying on 36 C.F.R. § 215, the cover letters sent by the Service
noted that appeals had to be lodged within 45 days of the
decisions’ publications and also noted the precise date when
appeals were due. In each case, the date was incorrect; the
45-day window for appeals under 36 C.F.R. §§ 215.9 and
1
215.13 (2001) actually closed the day before the given date.
Mr. Donham and Mr. Bensman filed appeals of decisions
within their areas of responsibility (the Pole Lake/
Plantation Lakes projects, and Chadwick Trails project,
respectively) on the dates specified by the Service’s notifica-
tion. The Service nevertheless dismissed their appeals
because their submissions were late.
B. District Court Proceedings
After the Service refused to consider the appeals,
Heartwood, along with Mr. Donham and Mr. Bensman,
filed this action. Invoking the APA, they sought declaratory
and injunctive relief to require that the Service consider
their appeals.
The plaintiffs took the position that, because they had
relied on the Service-provided due dates, the 45-day appeal
period was equitably tolled, and the Forest Service was
estopped from dismissing their appeals. They requested that
the district court require the Service to stay the three
projects until it considered their appeals. In reply, the
Service asserted that the district court lacked subject matter
1
The decisions and appeals in the three projects, Chadwick Trails,
Pole Lake and Plantation Lakes, spanned from January 2000 to
August 2001. Although Service regulations changed after 2002,
the applicable regulations remained the same during this time
period. For ease of reference, we cite to the 2001 Code of Federal
Regulations when considering the regulations in force at the
times in question.
4 No. 03-4041
jurisdiction over the action because the plaintiffs did not
have standing to seek such redress in a federal court. The
Service further submitted that the plaintiffs were not en-
titled to equitable tolling or equitable estoppel.
The district court first turned to Mr. Bensman’s appeal
concerning the Chadwick Trails project. The district court
held that Mr. Bensman had standing because he had asserted
a concrete injury in not having received the information that
he had sought. Turning to Mr. Donham’s appeal, the district
court held that Mr. Donham could not assert such an
informational injury because he did not identify any
concrete and particularized injury.
Because the district court had determined that Mr. Bensman
had standing to pursue the action with respect to his ad-
ministrative appeal, the district court next considered whether
equitable tolling and equitable estoppel rendered timely his
administrative appeals. With respect to the equitable tolling
claim, the district court concluded that, with due diligence,
Mr. Bensman could have filed the appeals on time; there-
fore, he could not rely on equitable tolling. With respect to
equitable estoppel, the court found no evidence of deliberate
misconduct on the part of the Forest Service and held that
equitable estoppel was inapplicable. The district court
therefore dismissed the action. This appeal followed.
II
DISCUSSION
A. Standing
Before we may address the merits, we must consider the
“threshold jurisdictional question” of whether Mr. Bensman
No. 03-4041 5
2
and Mr. Donham, and Heartwood, have standing to
maintain this action. See Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 102 (1998). “Standing to sue is part of the com-
mon understanding of what it takes to make a justiciable
case,” id. (citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)),
and “[f]or a court to pronounce upon the meaning . . . of a
state or federal law when it has no jurisdiction to do so is,
by very definition, for a court to act ultra vires,” id. at 101-02.
The parties invoking federal jurisdiction, here Mr. Bensman,
Mr. Donham and Heartwood, bear the burden of establish-
ing the requisite standing. Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992).
2
Heartwood predicates its claim to standing on both representa-
tional and organizational injury. See Freedom from Religion Found.,
Inc. v. Zielke, 845 F.2d 1463, 1469 (7th Cir. 1988) (noting that an
organization may have standing based on injury to itself or,
absent such injury, as a representative of members). Heartwood
claims standing as an organization, Warth v. Seldin, 422 U.S. 490,
511 (1975), by asserting an informational, procedural or participa-
tion injury to itself. In this respect, it argues that, as is the case
with all corporations, it can act only through its agents and that
the dismissals of the appeals brought on its behalf by its agents,
Mr. Bensman and Mr. Donham, constitute direct injury to itself.
Heartwood also claims that it can assert derivatively the injury
suffered by its employees. An organization can assert standing on
this basis when its members can sue in their own right, the
interests at stake are germane to the organization’s purpose, and
neither the claim asserted nor the relief requested require the
participation of individual members in the lawsuit. See Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000);
Hunt v. Washington Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
Heartwood’s organizational standing claim thus shares a
common assertion of informational, procedural or participation
injury with Mr. Bensman and Mr. Donham. For ease of reference,
therefore, we address only the standing of Mr. Bensman and Mr.
Donham.
6 No. 03-4041
“The irreducible constitutional minimum of standing con-
tains three requirements.” Steel Co., 523 U.S. at 102 (internal
quotation omitted). To maintain an action in a federal court,
Mr. Bensman, Mr. Donham and Heartwood must demon-
strate (1) an injury in fact, which is (a) concrete and particu-
larized and (b) actual or imminent; (2) that is traceable to
the Forest Service’s refusal to hear their appeal; and (3) that
is likely to be redressed by a favorable decision from this
court. Id. at 103; Lujan, 504 U.S. at 560-61. Before we apply the
analytical formula to the case at hand, it is essential that we
pause a moment and focus on the precise nature of the
claim asserted by these plaintiffs. The plaintiffs’ claim
alleges a violation of the APA. The plaintiffs believe that the
Forest Service arbitrarily and capriciously dismissed their
appeals and therefore deprived them of their rights under
3
the Appeals Reform Act (“ARA”), 16 U.S.C. § 1612 note, to
3
16 U.S.C. § 1612 note provides:
(a) In general.—In accordance with this section, the Secretary
of Agriculture, acting through the Chief of the Forest Service,
shall establish a notice and comment process for proposed
actions of the Forest Service concerning projects and activi-
ties implementing land and resource management plans
developed under the Forest and Rangeland Renewable
Resources Planning Act of 1974 (16 U.S.C. §§ 1601 et seq.)
and shall modify the procedure for appeals of decisions
concerning such projects.
(b) Notice and comment.—
(1) Notice.—Prior to proposing an action referred to in
subsection (a), the Secretary shall give notice of the
proposed action, and the availability of the action for
public comment by—
(continued...)
No. 03-4041 7
(...continued)
(A) promptly mailing notice about the proposed
action to any person who has requested it in writ-
ing, and to persons who are known to have partici-
pated in the decisionmaking process; and,
(B)(i) in the case of an action taken by the Chief of
the Forest Service, publishing notice of action in the
Federal Register; or
(ii) in the case of any other action referred to in
subsection (a), publishing notice of the action in a
newspaper of general circulation that has previously
been identified in the Federal Register as the news-
paper in which notice under this paragraph may be
published.
(2) Comment.—The Secretary shall accept comments
on the proposed action within 30 days after publication
of the notice in accordance with paragraph (1).
(c) Right to appeal.—Not later than 45 days after the date
of issuance of a decision of the Forest Service concerning
actions referred to in subsection (a), a person who was in-
volved in the public comment process under subsection (b)
through submission of written or oral comments or by other-
wise notifying the Forest Service of their interest in the
proposed action may file an appeal.
(d) Disposition of an appeal.—
(1) Informal disposition.—
(A) In general.—Subject to subparagraph (B), a
designated employee of the Forest Service shall offer
to meet with each individual who files an appeal in
accordance with subsection (c) and attempt to
dispose of the appeal.
(continued...)
8 No. 03-4041
(...continued)
(B) Time and location of the meeting.—Each meet-
ing in accordance with subparagraph (A) shall take
place—
(i) not later than 15 days after the closing date for
filing an appeal; and
(ii) at a location designated by the Chief of the
Forest Service that is in the vicinity of the lands
affected by the decision.
(2) Formal review.—If the appeal is not disposed of
in accordance with paragraph (1), an appeals review
officer designated by the Chief of the Forest Service shall
review the appeal and recommend in writing, to the
official responsible for deciding the appeal, the ap-
propriate disposition of the appeal. The official responsi-
ble for deciding the appeal shall then decide the appeal.
The appeals review officer shall be a line officer at least
at the level of the agency official who made the initial
decision on the project or activity that is under appeal,
who has not participated in the initial decision and will
not be responsible for implementation of the initial
decision after the appeal is decided.
(3) Time for disposition.—Disposition of appeals
under this subsection shall be completed not later than
30 days after the closing date for filing of an appeal,
provided that the Forest Service may extend the closing
date by an additional 15 days.
(4) If the Secretary fails to decide the appeal within the
45-day period, the decision on which the appeal is based
shall be deemed to be a final agency action for the
purpose of chapter 7 of title 5, United States Code.
(e) Stay.—Unless the Chief of the Forest Service determines
(continued...)
No. 03-4041 9
file an appeal from the Service's initial determination and to
have that appeal considered according to the terms of that
statute. In essence, Mr. Bensman and Mr. Donham challenge
the Forest Service’s refusal to consider their appeals; in their
view, this refusal denied them rights that they believe
Congress afforded them under the ARA as notice and
comment participants. The injury that they assert is the
Service’s refusal to hear those appeals, an injury, they
further submit, that the district court can remedy through
4
the requested relief.
(...continued)
that an emergency situation exists with respect to a decision
of the Forest Service, implementation of the decision shall be
stayed during the period beginning on the date of the
decision—
(1) for 45 days, if an appeal is not filed, or
(2) for an additional 15 days after the date of the dis-
position of an appeal under this section, if the agency
action is deemed final under subsection (d)(4).
4
Mr. Bensman’s submission to the district court grounded his
injury claim in the belief that the dismissal of his appeal pre-
vented him from receiving certain information. Essentially, he
asserted that the Forest Service gave an inadequate response to
his submissions in the notice and comment process; that in not
considering his appeal the Forest Service refused to correct this
inadequate analysis; and that he required this information to
“fully understand, and comment upon, the impacts from the
[Chadwick Trails] project.” R.38, Ex.2 ¶ 6. The district court
accepted that Mr. Bensman “has been harmed by the dismissal of
his administrative appeal because he has not received the
information he seeks,” and because the Forest Service did “not
appear to contest this proposed fact” the district court deter-
mined that Mr. Bensman had standing to contest the dismissal of
(continued...)
10 No. 03-4041
The only standing question presented in this appeal is
whether the plaintiffs have suffered an injury in fact suf-
ficient to establish constitutional standing that will allow
them to maintain this action in federal court. They assert
that the Forest Service injured them by denying them pro-
cedural rights granted by the ARA. In their view, they have
a right under the ARA to participate in the administrative
appeals process and to receive information regarding the
disposition of their appeals. The denial of this opportunity
constitutes, they submit, a sufficiently concrete injury for
standing purposes. Mr. Bensman and Mr. Donham further
contend that they have concrete interests in land affected by
the Service projects. In their view, the Forest Service’s
dismissal of their appeals injured those interests in a
manner sufficient to give them standing to challenge the
Service’s decision. We shall consider each theory of injury
in turn.
1.
The plaintiffs assert what might be called generically a
5
“procedural injury.” This claimed right is grounded solely
4
(...continued)
his Chadwick Trails appeal. R.58 at 8.
Although the Forest Service does not challenge Mr. Bensman’s
standing here, we have the independent obligation “to satisfy
ourselves that this jurisdictional requirement is met.” Rhodes v.
Johnson, 153 F.3d 785, 787 (7th Cir. 1998). Standing is a constitu-
tional prerequisite for an Article III court to hear this appeal, and
we must be satisfied that all of the plaintiffs demonstrate the
necessary elements.
5
See Appellants’ Br. at 20 (“Heartwood’s ‘right to appeal’ has
been taken from it due to no fault of their members . . . . The fact
(continued...)
No. 03-4041 11
in the ARA requirement that the Service afford appeal rights
to individuals who have participated in the comment period
for the project. They simply ask that the Service comply
6
with the ARA. The right that they assert is the very defini-
tion of a procedural right: “the right to have the Executive
observe procedures mandated by law.” Hodges v. Abraham,
300 F.3d 432, 444 (4th Cir. 2002).
The plaintiffs are certainly within the class of persons who
“may file an appeal” under the ARA because they partici-
pated in the notice and comment process. 16 U.S.C. § 1612
note (c). It equally is certain that, in dismissing their ap-
peals, the Forest Service deprived them of this procedural
right to be heard during the appellate phase of the Service’s
consideration of its decision in each project. The Service
submits, nevertheless, that the alleged injury is insufficient
to satisfy the constitutional prerequisite for standing. It
points out that, in Lujan, the Supreme Court determined that
plaintiffs could not fulfill the constitutional standing require-
ment simply by asserting a procedural right. In Lujan, the
plaintiffs relied upon a provision of the Endangered Species
5
(...continued)
that Donham and Heartwood are not able to raise their substan-
tive claims on behalf of Heartwood . . . is the actual injury.”).
6
Notably, with respect to this contention, the plaintiffs do not
contend, for instance, that the Service’s decision deprived them
of the use of their land. In such a scenario, the plaintiffs’ chal-
lenge to the agency action would not rely solely on whether the
Service complied with the ARA. In the argument we are now
evaluating in the text, the plaintiffs’ position relies solely on the
ARA’s procedural requirement that those who have commented
on the Service’s proposed action have a right to participate in the
appellate stage of the Service’s consideration of the proposed
action.
12 No. 03-4041
Act (“ESA”), 16 U.S.C. § 1540(g), that granted a “procedural
right” to “any person” to challenge in federal court the
Secretary of the Interior’s failure to follow the ESA’s
consultative procedures. Lujan, 504 U.S. at 571-72. The
plaintiffs sought to require the Secretary to engage in intra-
agency consultation during his decision-making process.
The Supreme Court went on to note that this claimed
“procedural right” gave any individual the right to maintain
an action in federal court to assert what amounted to a
generalized grievance about the manner in which the
Secretary was conducting his office. The relief sought, an
order compelling the Secretary to observe the statutorily
mandated decision-making process, impacted on no
concrete, individualized interest of the plaintiffs; their
grievance was shared with everyone else. It was in no way
specific to them. To underline its point, the Supreme Court
set forth, at some length, its earlier cases in which a citizen
had sought federal judicial relief against a government
official who, in the view of the plaintiff, had not conformed
his conduct to a legal norm, but in which the plaintiff had
suffered no injury that differentiated him from anyone else
7
in the American population.
7
For instance, the Court relied upon its decision in Fairchild v.
Hughes, 258 U.S. 126 (1922), in which it had denied standing to an
individual, suing as a taxpayer and member of the American
Constitutional League, who sought to challenge the ratification
process for the Nineteenth Amendment. It also relied upon
Massachusetts v. Mellon, 262 U.S. 447 (1923), in which it had
denied standing to a taxpayer who wanted to challenge certain
federal expenditures. The Court further noted that this same line
of reasoning had been at the core of the Court’s decisions in many
other cases in which an individual had sought to rectify govern-
mental action despite the fact that the plaintiff had suffered no
(continued...)
No. 03-4041 13
The situation before us today is not entirely congruent
with the situation before the Supreme Court in Lujan. Here,
the plaintiffs claim that a federal statute confers on them the
right to participate in an administrative appeal process
because they had submitted comments at an earlier stage in
the decision-making process. They claim that the defendants
arbitrarily and capriciously have denied them this proce-
dural right, and they ask that the district court grant them
relief that will ensure that they can exercise that right.
Unlike the situation in Lujan, the present plaintiffs are
seeking to vindicate their own statutory right to participate
in an administrative process. In that sense, the asserted right
might be characterized as personal to them. They also have
fulfilled the prerequisite of having participated in the
comment stage of the Service’s consideration of the pro-
posed action and now wish to participate in the Service’s
appellate consideration of the same action, a right specifi-
cally accorded them by the ARA. In this action they want to
correct the Service’s deprivation of that personal right, not
rectify, as in Lujan, a government misstep that affects them
no more than it affects the rights of all other citizens.
Despite these factual differences, we believe that the
present standing claim is governed by the same principles
as the ones that formed the bedrock of the Supreme Court’s
7
(...continued)
specific injury, but simply had shared with all others the general-
ized injury of having government not conform its actions to the
law. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418
U.S. 208 (1974) (no citizen-taxpayer standing to allege a violation
of the Incompatibility Clause); United States v. Richardson, 418 U.S.
166 (1974) (no taxpayer standing to challenge an alleged violation
of the Accounts Clause); Ex parte Levitt, 302 U.S. 633 (1937) (no
citizen standing to challenge the appointment of a Justice under
the Ineligibility Clause).
14 No. 03-4041
decision in that case. The Supreme Court made clear in
Lujan that, unless the denial of a procedural right endan-
gered a separate substantive right of the plaintiff, a plaintiff
may not invoke the federal judicial power to vindicate the
denial of that procedural right: “This is not a case where
plaintiffs are seeking to enforce a procedural requirement
the disregard of which could impair a separate concrete
interest of theirs.” Lujan, 504 U.S. at 572. Consequently, we,
along with other circuits, have acknowledged that the denial
of a “procedural right, unconnected to a plaintiff’s concrete
harm, is not enough to convey standing.” Heartwood, Inc. v.
United States Forest Serv., 230 F.3d 947, 952 (7th Cir. 2000)
(citing Lujan, 504 U.S. at 571-72); see also Rhodes v. Johnson, 153
F.3d 785, 787 (7th Cir. 1998) (noting that Lujan “foreclosed
standing based on some sort of ‘procedural injury’ ”);
Animal Legal Def. Fund, Inc. v. Glickman, 204 F.3d 229, 236
(D.C. Cir. 2000) (“But standing to raise a procedural injury
requires that the procedural norm be one designed to pro-
tect some threatened concrete interest of the plaintiff . . . .”
(internal quotation omitted)). Thus, under Lujan, the depri-
vation of a purely procedural right can be remedied by a
federal court only when the individual who has been
deprived of that right can demonstrate that deprivation of
that right is related to another concrete injury. This principle
does not mean that parties claiming a deprivation of
procedural rights afforded by statute must establish that the
agency would have reached a different conclusion had they
been allowed to participate. The plaintiffs do not have to
prove that their comments on appeal necessarily would alter
the Forest Service’s decision to proceed in the Chadwick
Trails, Plantation Lakes and Pole Lake projects. See Lujan,
504 U.S. at 572. “All that is necessary is to show that the
procedural step was connected to the substantive result.”
Sugar Cane Growers Coop. of Florida v. Veneman, 289 F.3d 89,
94-95 (D.C. Cir. 2002). Lujan requires the plaintiffs to
demonstrate that the deprivation of their procedural rights
No. 03-4041 15
affects some concrete interest, such as their use and enjoy-
ment of the land. For example, “one living adjacent to the
site for proposed construction of a federally licensed dam
has standing to challenge the licensing agency’s failure to
prepare an environmental impact statement,” but there is no
“standing for persons who have no concrete interests
affected—persons who live (and propose to live) at the other
end of the country from the dam,” Lujan, 504 U.S. at 572 n.7;
see also Fund Democracy, LLC v. SEC, 278 F.3d 21, 27 (D.C.
Cir. 2002) (“A party has standing to challenge an agency’s
failure to abide by a procedural requirement only if the
government act performed without the procedure in
question will cause a distinct risk to a particularized interest
of the plaintiff.”).
In short, unlike the procedural lapse in Lujan, the proce-
dural lapse in this case can be said to be personal to the
plaintiffs. Yet, unless the plaintiffs can show that the depri-
vation of this procedural right somehow is related to a dis-
crete, substantive injury for which they may seek redress in
federal court, they have no standing to seek redress of the
procedural injury itself. The plaintiffs therefore must
establish that some concrete interest has been affected by the
Forest Service’s dismissal of their appeals. We turn now to
an examination of the various theories by which the plain-
tiffs have attempted to carry this burden.
2.
The plaintiffs submit that the ARA confers upon them a
right to have their voices heard through participation in the
decision-making process. Under this theory, the ARA-
granted right to participate in Forest Service decision-mak-
ing is a concrete interest, and the Service’s decision to dis-
miss their appeals injures their right to participate in the
process.
16 No. 03-4041
We cannot accept this argument. The right guaranteed by
the ARA is, at bottom, simply a right to participate in agency
deliberations. At least after Lujan, “[p]articipation in agency
proceedings is alone insufficient to satisfy judicial standing
requirements.” Fund Democracy, 278 F.3d at 27. “Because
agencies are not constrained by Article III, they may permit
persons to intervene in the agency proceedings who would
not have standing to seek judicial review of the agency
action.” Id. Lujan and the cases that have followed it reason
that the right to participate in the proceedings of the agency
does not give one the right to seek redress for the depriva-
tion of that right in federal court when one does not have a
sufficiently differentiated concrete interest in the agency
proceedings to seek review of the agency’s substantive
decision in federal court.
In this case, the right to an administrative appeal after
participating in the initial agency comment period is cre-
ated not simply by a regulation of the agency but by the
statute itself. Nevertheless, the right granted by the ARA is,
standing alone, a procedural right. Our colleagues on the
Court of Appeals for the District of Columbia Circuit have
faced squarely this precise issue and have determined that
a statutory right similar to the ARA is insufficient to sup-
port standing. In Fund Democracy, 278 F.3d 21, an organiza-
tion asserted standing as an “interested person” within the
8
meaning of 15 U.S.C. § 80a-2(a)(19), and as such claimed a
right to redress in federal court when it was denied an
opportunity to be heard along with other “interested
persons.” The District of Columbia Circuit assumed that the
organization did qualify as an interested person, but held
that the organization lacked standing in federal court to
vindicate this right to be heard:
8
The complete text of this statute is set forth at Fund Democracy,
LLC v. SEC, 278 F.3d 21, 23 n.1 (D.C. Cir. 2002).
No. 03-4041 17
Fund Democracy suggests that Congress specifically
intended to grant to all “interested persons” a right to
a hearing before the SEC and that the denial of this
right therefore confers standing. . . . Even assuming
that Congress intended to grant a right to a hearing to
all interested persons and that Fund Democracy is
among those persons, the deprivation of that right does
not alone confer Article III standing. The grant of a
procedural right cannot serve as the basis for Article III
standing unless “the procedures in question are de-
signed to protect some threatened concrete interest of
[petitioner’s] that is the ultimate basis of his standing.”
Fund Democracy, 278 F.3d at 27-28 (quoting Lujan, 504 U.S.
at 573 n.8, and citing Florida Audubon Soc’y v. Bentsen, 94
F.3d 658, 664 (D.C. Cir. 1996)); cf. Common Cause v. Fed.
Election Comm’n, 108 F.3d 413, 419 (D.C. Cir. 1997) (“[The
statute in question] does not confer standing; it confers a
right to sue upon parties who otherwise already have
standing. As in Lujan, absent the ability to demonstrate a
‘discrete injury’ flowing from the alleged violation of [the
Federal Election Campaign Act (’FECA’)], Common Cause
cannot establish standing merely by asserting that the
[Federal Election Commission (’FEC’)] failed to process its
complaint in accordance with law. To hold otherwise
would be to recognize a justiciable interest in having the
Executive Branch act in a lawful manner.”). But see Fund
9
Democracy, 278 F.3d at 28 (Edwards, J., dissenting); Idaho
9
In his thoughtful dissenting opinion, Judge Edwards took the
view that, when Congress creates such a particularized right to
participate in agency appellate proceedings, the individual de-
nied that right has a sufficient injury to permit him to seek re-
dress of that right in federal court, even if he could not seek
(continued...)
18 No. 03-4041
Conservation League v. Mumma, 956 F.2d 1508, 1514 (9th Cir.
1992) (finding standing based on a violation of procedural
requirements under the National Environmental Policy Act
(“NEPA”) because “NEPA is essentially a procedural stat-
ute,” and “injury alleged to have occurred as a result of vio-
lating this procedural right confers standing” (citations
omitted)).
The requirement that a party suffer concrete and particu-
larized injury apart from the congressionally granted pro-
cedural process applies regardless of whether Mr. Bensman
and Mr. Donham characterize their injury as “procedural”
or as a violation of their “right to participate.” The ARA
grants Mr. Bensman and Mr. Donham a right to appeal to
the Forest Service, but that procedural right does not auto-
matically grant them standing to contest the Service’s
refusal to hear their appeal to an Article III court. Rather,
they must show some concrete harm, apart from the denial
of their right to participate, that constitutes “injury in fact”
for standing purposes. A claimed participation injury can-
not alone serve as proxy for the constitutionally required
showing of concrete and particularized harm.
9
(...continued)
review in the same forum from the agency’s substantive deter-
mination because he lacks a sufficiently concrete injury from that
vantage point. Judge Edwards notes that, if the individual does
not have such redress to federal court, the agency can deny the
procedural right with impunity. We cannot disagree with the
Judge’s conclusion as to the consequences of a denial of standing.
Such a consequence is not, however, unknown in the law of
standing. “The assumption that if [the plaintiffs] have no stand-
ing to sue, no one would have standing, is not a reason to find
standing.” Schlesinger, 418 U.S. at 227; cf. Richardson, 418 U.S. at
179.
No. 03-4041 19
3.
Mr. Bensman and Mr. Donham also submit that the
Forest Service’s decision to dismiss their appeals without
consideration constitutes an “informational injury” that is
sufficiently concrete and particularized to satisfy the “in-
jury prong” of the standing inquiry. It is important to note
that this asserted basis is separate from any interest that
they may hold in the land affected by Forest Service de-
cisions. It is grounded in, but apart from, their procedural
rights granted by the ARA. Specifically, the plaintiffs allege
that they have been injured by the Forest Service’s denial of
information to which they believe they have a statutory
right.
The decisions of the Supreme Court and of some of our
sister circuits provide ample authority for the view that
such informational injury can constitute, in some contexts,
sufficiently concrete harm to satisfy the constitutional stand-
ing inquiry. Most notably, in Federal Election Commission v.
Akins, 524 U.S. 11 (1998), the Supreme Court recognized
that an informational injury can be sufficiently concrete and
particularized to support both Article III and prudential
standing. In Akins, the Court held that a group of voters
had standing to challenge the FEC’s refusal to bring an
enforcement action against a political committee, AIPAC.
In that case, the voters had asserted that AIPAC failed to
10
disclose information that the FECA required be made
public. With respect to the voters’ Article III standing, the
Court noted that their injury in fact stemmed from their
10
The FECA requires qualified committees to file and maintain
a variety of records and reports regarding donor, donor amounts,
expenditures and disbursements. 2 U.S.C. §§ 432-434. The stat-
utory provision further requires the FEC to make this information
available to the public. Id. § 434(a)(11)(B).
20 No. 03-4041
failure to receive information that the statute specifically
required be produced. Akins, 524 U.S. at 21. Moreover,
noted the Court, FECA purported “to protect individuals
such as respondents from the kind of harm they say they
have suffered, i.e., failing to receive particular information
about campaign-related activities.” Id. at 22. The Court
found it significant that FECA protected citizens from an
“informational injury . . . directly related to voting, the
most basic of political rights.” Id. at 24-25. Given FECA’s
requirements and purposes, the Court held that the plain-
tiffs’ lack of access to information constituted a sufficiently
concrete and particularized injury to establish standing.
Informational deprivations also have been found sufficient
to constitute Article III injuries in fact in causes of action
11
brought under the Freedom of Information Act (“FOIA”),
12
and the Federal Advisory Committee Act (“FACA”), see,
11
See, e.g., Pub. Citizen v. United States Dep’t of Justice, 491 U.S. 440,
449 (1989) (“Our decisions interpreting the Freedom of Informa-
tion Act have never suggested that those requesting information
under it need show more than that they sought and were denied
specific agency records.”); see also McDonnell v. United States, 4
F.3d 1227, 1238 (3d Cir. 1993) (citing Richardson, 418 U.S. at 204
(Stewart, J., dissenting) (“For example, the Freedom of Informa-
tion Act . . . requires nothing more than a request and the denial
of that request as a predicate to a suit in the district court.”)).
12
The FACA, 5 U.S.C. app. 2, provides that
the records, reports, transcripts, minutes, appendixes, work-
ing papers, drafts, studies, agenda, or other documents which
were made available to or prepared for or by each advisory
committee shall be available for public inspection and copy-
ing at a single location in the offices of the advisory commit-
tee or the agency to which the advisory committee reports
until the advisory committee ceases to exist.
(continued...)
No. 03-4041 21
e.g., Pub. Citizen, 491 U.S. at 449; Cummock v. Gore, 180 F.3d
282, 290-93 (D.C. Cir. 1999). Notably, the Supreme Court
also has recognized that the right to truthful housing in-
13
formation contained in the Fair Housing Act (“FHA”)
supported the standing of a tester who sought housing
information. Havens Realty Corp. v. Coleman, 455 U.S. 363,
14
373 (1982).
Other circuits similarly have acknowledged the informa-
tional injury doctrine, including in actions predicated on
statutes protecting environmental stewardship. See, e.g.,
American Canoe Ass’n, Inc. v. City of Louisa Water & Sewer
Comm’n, 389 F.3d 536, 542 (6th Cir. 2004) (finding informa-
tional injury in agency’s failure to comply with public
disclosure requirements of the Clean Water Act, 33 U.S.C.
§ 1318(b)). These decisions have recognized that “[t]he
‘inability to obtain information’ required to be disclosed by
12
(...continued)
Id. app. 2 § 10(b). Because “this provision ‘affirmatively obligates
the Government to provide access to the identified materials
[papers, drafts, studies, agenda or other documents],’ ” Cummock
v. Gore, 180 F.3d 282, 289 (D.C. Cir. 1999) (quoting Food Chem.
News v. Dep’t of Health & Human Servs., 980 F.2d 1468, 1472 (D.C.
Cir. 1992)), a commission member “suffered an injury under
FACA insofar as the Commission denied her requests for infor-
mation that it was required to produce.” Id. at 290.
13
The FHA makes it unlawful “to represent to any person be-
cause of race, color, religion, sex, handicap, familial status, or
national origin that any dwelling is not available . . . when such
dwelling is in fact so available.” 42 U.S.C. § 3604(d).
14
The Supreme Court expressly has refused to consider whether
an agency’s failure to disclose reports under the Emergency
Planning and Community Right-to-Know Act (“EPCRA”) could
constitute an informational injury. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 105 (1998).
22 No. 03-4041
statute constitutes a sufficiently concrete and palpable in-
jury to qualify as an Article III injury-in-fact.” Grant ex rel.
Family Eldercare v. Gilbert, 324 F.3d 383, 387 (5th Cir. 2003)
(quoting Akins, 524 U.S. at 21). We have not had occasion to
recognize definitively a standing claim based solely on
informational injury.
It is notable that no cases have extended the reach of
informational standing to the ARA. Nevertheless, in this
case the plaintiffs urge a broad formulation of the informa-
tional injury concept. In their view, “[a] plaintiff suffers an
informational injury when an agency refuses to provide the
petitioner with information that he has an arguable right to
obtain.” Appellants’ Br. at 16. We turn now to an analysis
of their claims to determine whether, in the context of this
case, that proposition can be squared with existing prece-
15
dent.
We first consider Mr. Bensman’s theory of informational
standing. It rests on a belief that his appeal, if considered
by the Forest Service, (1) may lead the Service to conduct a
more adequate analysis of its decision in the Chadwick
Trails project and thereby allow him to comment upon
future Forest Service action, or (2) may yield information on
issues raised in his submission. The first hypothesis is too
attenuated to support a claim of informational standing. No
statute or regulation requires the Forest Service to revise its
analysis in response to a filed appeal. Therefore, under this
theory, there simply is no information to which Mr.
Bensman may claim an entitlement. Any suggestion that
15
The district court took the view that Mr. Bensman had suffered
an informational injury but that Mr. Donham, who asserted the
same injury, had not. We have difficulty perceiving a distinction
between the two plaintiffs but shall review each individual se-
parately.
No. 03-4041 23
Mr. Bensman’s appeal would yield such a supplemental
16
analysis is purely speculative. See Wertheimer v. Fed.
Election Comm’n, 268 F.3d 1070, 1074 (D.C. Cir. 2001)
(denying an informational injury claim when the appellants
failed to demonstrate “that the legal ruling they seek might
lead to additional factual information”).
Mr. Bensman’s second claim is that he has been deprived
of an informational right guaranteed by the appeals pro-
cess. We do not believe that Mr. Bensman can find support
for this theory of informational standing in the text of the
ARA. The statute requires that the Secretary provide
adequate opportunity for comment on the projects of
the Service and further requires that those individuals, like
Mr. Bensman, who participated in the notice and comment
process be given an opportunity to comment on the proposed
course of action. Unless the appeal is decided informally,
16
There is no statutory or regulatory requirement that the Forest
Service provide an “adequate analysis” of its decision. The stat-
utory provisions indicate only that the Secretary “shall establish
procedures . . . to give the . . . public adequate notice and an
opportunity to comment.” 16 U.S.C. § 1612(a); see also id. § 1612
note (a). Forest Service regulations in force at the time of this
action further noted only that the deciding official “shall address
comments received from the public during the comment period
in an appendix to the environmental assessment,” 36 C.F.R.
§ 215.6(d), and that the Service’s decision document (“the
document that records the decisions for actions implementing
land and resource management plans,” id. § 215.2) should be
mailed to all participants in the notice and comment process, id.
§ 215.9, for possible appeal. Although Mr. Bensman disputes the
thoroughness of the Service’s decision document, there is no
apparent standard by which to measure its adequacy apart
from his belief that it provided insufficient information.
Mr. Bensman’s standing cannot rest upon a non-existent right to
adequate analysis.
24 No. 03-4041
the statute further requires that an appeals review officer
evaluate the participant’s submission “and recommend in
writing, to the official responsible for deciding the appeal,
the appropriate disposition of the appeal.” 16 U.S.C. § 1612
note (d)(2). “The official responsible for deciding the appeal
shall then decide the appeal.” Id. “If the Secretary fails to
decide the appeal within [a] 45-day [review] period,” the
agency decision becomes final for APA purposes. See id.
17
§ 1612 note (d)(4).
This broad language does not provide any explicit right
to information. In fact, because the statute contemplates
that the deciding officer might not even make a decision
with respect to the matters raised on appeal, we cannot say
that, standing alone, it grants Mr. Bensman or any other
notice and comment participant a right to information.
Further, there is nothing in the ARA’s history to indicate
that Congress intended it as a vehicle for transmitting infor-
mation to the public. Prior to 1992, no statutory provision
required the Forest Service to provide an administrative ap-
peals process for review of its decisions affecting national
parks, although its regulations provided a process by which
17
Service regulations in effect at the time of the incidents giving
rise to this appeal seemed inconsistently both to require the de-
ciding officer to issue a decision in the appeal within 45 days of
filing, 36 C.F.R. § 215.17(a) (2001), and allow a deciding officer to
forego a decision, id. § 215.17(b) (“If a formal decision is not issued,
the Appeal Deciding Officer shall notify the appellant(s) of the
disposition of their appeal.” (emphasis added)). The Service
subsequently corrected this inconsistency by requiring the de-
ciding officer to “either,” id. § 215.18 (b) (2004), issue an appeal
decision within 45 days, id. § 215.18(b)(1), or not issue an appeal
determination and notify the appellant that the challenged
decision constitutes the agency’s final action, id. § 215.18(b)(2), a
choice that remains today in the Service’s regulations.
No. 03-4041 25
to challenge decisions. In 1992, the Service determined that
this voluntary provision of an appellate process had become
too costly and burdensome to maintain, and promulgated
proposed rules to exempt project-level decisions from
review. The decision to eliminate such review sparked sub-
stantial negative comment from the public and prompted
Congress to enact the ARA, thereby codifying the Service’s
obligation to entertain appeals of its decisions. See generally
Wilderness Soc’y v. Rey, 180 F. Supp. 2d 1141, 1147 (D. Mont.
2002); Idaho Sporting Cong., Inc. v. United States Forest Serv.,
843 F. Supp. 1373, 1375 (D. Idaho 1994).
The ARA’s history indicates that Congress intended the
statute to restore the citizen participation that existed prior
to the Service’s proposed 1992 rule changes. In introducing
the bill, Senator Fowler criticized the Service’s proposal to
modify “85 years” of public participation in Service deci-
sions, and hailed the ARA as a way to open “a systematic
channel for public participation . . . as well as maintaining
an appeal system of review.” 138 Cong. Rec. S11,643 (daily
ed. Aug. 6, 1992) (statement of Sen. Fowler). He also noted
that the appeals process “is simply a chance for a citizen’s
views, a taxpayer’s views about his own forest” to be heard.
Id.
By way of contrast, for example, FOIA’s goal is “to serve
the ‘basic purpose of ensuring an informed citizenry, vital
to the functioning of a democratic society.’ ” Lakin Law Firm,
P.C. v. FTC, 352 F.3d 1122, 1123 (7th Cir. 2003) (quoting Solar
Sources, Inc. v. United States, 142 F.3d 1033, 1037 (7th Cir.
1998)). Similarly, Congress intended the explicit reporting
and informational requirements in FACA to control ad-
visory committees and to allow public scrutiny of the advice
provided to the Executive Branch by private individuals.
See Cummock, 180 F.3d at 284-85. In short, statutes like FOIA
and FACA that have served as the basis for informational
26 No. 03-4041
standing have a goal of providing information to the
public; the ARA’s goal is simply to increase public parti-
cipation in the decision-making process. The difference
in purposes seems to belie Mr. Bensman’s claim that the
ARA provides a right to information—i.e., a response to his
submission—denied by the dismissal of his appeal.
It need not be fatal to the plaintiffs’ claim, however, that
an explicit right to information is not within the ARA’s text
or history. Although an act of Congress would seem to be
necessary to establish a right to information sufficient to
18
confer informational standing, we have noted authority in
other courts indicating that regulations or agency policies
19
may be sufficient to create a right to information.
We therefore assume for the sake of argument that
Mr. Bensman’s injury may be based on a regulatory right to
information, promulgated by the Forest Service under 16
U.S.C. § 1612.
At the time of the events giving rise to this cause of ac-
tion, Forest Service regulations appeared both to mandate
a decision by the appeals deciding officer, and to allow for
the possibility that the officer need not actually render a
decision at all, apparently consistent with 16 U.S.C. § 1612
18
See, e.g., Fed. Election Comm’n v. Akins, 524 U.S. 11, 21 (1998)
(noting that a plaintiff suffers injury when he fails to obtain infor-
mation “which must be publicly disclosed pursuant to a statute”
(emphasis added)); Grant ex rel. Family Eldercare v. Gilbert, 324
F.3d 383, 387 (5th Cir. 2003) (stating that the inability to obtain
information “required to be disclosed by statute” constitutes an
injury in fact (emphasis added)).
19
See, e.g., Animal Legal Def. Fund, Inc. v. Glickman, 204 F.3d 229,
236 (D.C. Cir. 2000); Chiron Corp. v. Nat’l Transp. Safety Bd., 198
F.3d 935, 942-43 (D.C. Cir. 1999).
No. 03-4041 27
note (d)(4); indeed, as noted above, the Service’s current
interpretation of the ARA appears to clarify that the officer
need not issue a formal decision. To the extent that the
Service by regulation did not (and does not) have to render
a decision on an individual appeal under § 1612 note (d)(4),
we certainly cannot say that the agency rules granted
Mr. Bensman a right to any information contained in the
deciding officer’s potentially non-existent opinion. For the
sake of argument, however, we shall accept that the regu-
lations did, in fact, require the Service to render a decision
on Mr. Bensman’s appeal. See 36 C.F.R. § 215.17(a). Never-
theless, even if the Service had to consider his appeal,
Mr. Bensman’s claim to an informational injury could not
stand on the Service’s regulations. At the time of
Mr. Bensman’s appeal, the Forest Service’s regulatory
obligation was to “issue a written appeal decision either
affirming or reversing the Responsible Official’s decision, in
whole or in part, and may include instructions for further
action,” and to send the decision to the appellant. Id.
§ 215.17(b). Further, Service regulations required the
deciding officer to “briefly explain why the Responsible
Official’s original decision was affirmed or reversed, in
20
whole or in part.” Id. § 215.13(f)(3). There is no indication,
in the regulations or in the record, of the length or depth of
20
Again, as with the Service’s interpretation of 16 U.S.C. § 1612
note (4)(d), the Forest Service now seems to be of the opinion that
the deciding officer’s role in issuing decisions is even more
limited. See supra note 17. The new provision, along with an
admonition that the “publication date of the legal notice of the
decision in the newspaper of record is the exclusive means for
calculating the time to file an appeal [and] [a]ppellants should
not rely on dates or timeframe information provided by any other
source,” 36 C.F.R. § 215.15(b)(3) (2004), is presumably intended
to prevent litigation of this type in the future.
28 No. 03-4041
explanation required. Mr. Bensman does not specify the
information that he hopes to receive from any decision
explanation, although his declaration to the district court
indicated that he believes the Service’s failure to render a
decision “deprives [him] of the opportunity to see and
review the Forest Service’s response to the issues that were
raised in the appeal.” R.38, Ex.2 ¶ 6.
Even a mandate for the deciding officer to “briefly
explain” his reasons for affirming or reversing a previous
decision certainly would not require the Forest Service to
address the particular issues that Mr. Bensman would have
raised, if his submission had been considered. The brief
explanation requirement does not guarantee or promise to
yield any factual information. Wertheimer, 268 F.3d at 1074.
Unlike the FACA, for example, the ARA does not guarantee
public access to agency documents or other specific infor-
mation. See 5 U.S.C. app. 2 § 10(b) (specifying that “the
records, reports, transcripts, minutes, appendixes, working
papers, drafts, studies, agenda, or other documents which
were made available to or prepared for or by each advisory
committee shall be available for public inspection”). Nor
can we say that the Service’s failure to provide a brief ex-
planation in affirming or denying an administrative appeal
is in any way akin to an “informational injury . . . directly
related to voting, the most basic of political rights.” Akins,
524 U.S. at 24-25.
Indeed, Mr. Bensman’s asserted informational injury,
standing alone, seems not to be the deprivation of informa-
tion, but an injury to his interest in ensuring that the Forest
Service properly complies with the ARA. Such an interest
is, fundamentally, a generalized interest in the Forest
Service’s application of its laws and regulations. “We have
consistently held that a plaintiff raising only a generally
available grievance about government—claiming only harm
to his and every citizen’s interest in proper application of
No. 03-4041 29
the Constitution and laws . . . does not state an Article III
case or controversy.” Lujan, 504 U.S. at 573-74; cf. Common
Cause, 108 F.3d at 419 (noting, in rejecting the plaintiff’s
procedural standing theory, that “[t]o hold otherwise
would be to recognize a justiciable interest in having the
Executive Branch act in a lawful manner,” and that “the
Supreme Court held in Lujan[ ] [that this] is not a legally
cognizable interest for purposes of standing”).
Mr. Donham’s informational standing claim is even
weaker: his submission to the district court did not even
allege a harm resulting from the deprivation of an appeal
decision. However, given that both Mr. Bensman and
Mr. Donham seem to assert the same ARA-based informa-
tional injury before this court, our determination as to the
former is reason enough to decide against the latter.
4.
Mr. Bensman and Mr. Donham make an alternative argu-
ment. They claim that their interests in the land involved in
the Chadwick Trails, Pole Lake and Plantation Lakes pro-
jects were injured by the Forest Service’s dismissal of their
administrative appeals. The district court disagreed with
Mr. Donham, concluding that his statements did not indi-
cate a sufficient interest in the land to permit the dismissal
of his appeal to be characterized as an injury in fact for
standing purposes. The court found no need to consider the
sufficiency of Mr. Bensman’s ties to land affected by the
Chadwick Trails project, however, because it accepted his
standing based on purely informational injury. Because
the district court erred in determining that Mr. Bensman
suffered such an informational injury, we also must review
whether Mr. Bensman’s interest in the land is sufficient for
the dismissal of his appeal to constitute an injury in fact.
30 No. 03-4041
Even when challenging an agency’s environmental deter-
minations, “[t]he relevant showing for purposes of Article
III standing . . . is not injury to the environment but injury
to the plaintiff.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 181 (2000). This injury includes the
lessening of recreational or aesthetic value of an area to a
plaintiff as a result of agency action, “[b]ut the ‘injury in
fact’ test requires more than an injury to a cognizable in-
terest. It requires that the party seeking review be himself
among the injured.” Sierra Club v. Morton, 405 U.S. 727, 734-
35 (1972). To satisfy the Article III requirement of concrete
and particularized harm, a plaintiff cannot merely offer
“averments which state only that [the plaintiff] uses unspe-
cified portions of an immense tract of territory, on some
portions of which [damaging] activity has occurred or
probably will occur by virtue of the governmental action.”
21
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990).
In a previous case, we held that Heartwood, Mr. Bensman
and Mr. Donham had standing to contest Forest Service pro-
cedures under the NEPA. We determined that the plaintiffs
had averred sufficient potential injury to their interests in
the land to establish an injury in fact. See Heartwood, Inc. v.
United States Forest Serv., 230 F.3d 947, 952 & n.5 (7th Cir.
2000). Our analysis in that case cannot control our decision
here. The Heartwood appellants challenged policies of the
Forest Service—categorical exclusions—affecting the
entirety of every national forest in the Country. Here, they
challenge only specific projects at three distinct national
parks.
Mr. Donham, at the time of this action a resident of
Brookport, Illinois, did not live on or near the land affected
21
We shall examine Mr. Donham’s and Mr. Bensman’s submis-
sions with this standard in mind.
No. 03-4041 31
by the Pole Lake and Plantation Lakes projects—the
Hiawatha and Ottawa National Forests in Michigan’s
Upper Peninsula. His connection to the land stems mainly
from his employment as a Heartwood forest monitor with
responsibility to comment on Forest Service activities in the
two national parks. Mr. Donham has limited personal ties
to the land in question, which he set forth in his declaration
to the district court:
I first visited the Upper Peninsula in 1981. A very close
friend and business associate that I had worked with in
the treeplanting business had inherited a farm in the
Keweenaw peninsula. We spent some time up there
and looked around at the national forests and the
magnificent great lakes. Since I started to work on
northwoods issues [for Heartwood], I have been back
three times and absolutely love it. I have visited areas
on the Hiawatha and Ottawa, some of the very areas
which are subject to the decisions involved in this law-
suit. I absolutely love the Upper Peninsula forest and
want to come back to visit them as often as I can. I have
relatives in Michigan and in the very northern part of
Wisconsin that we are beginning to visit on a regular
basis, providing us with a great excuse to recreate in
the region.
R.38, Ex.1 ¶ 8. Subsequent declarations clarified that he
visited Ottawa National Forest a total of four times since
1981, most recently in 2001, R.50 ¶¶ 3-4, and that he visited
Hiawatha National Forest twice at unspecified times, R.50
¶ 6. Mr. Donham further presented some evidence, in the
form of Forest Service telephone records, that he visited the
Plantation Lakes area specifically in late June of 2001.
The district court correctly determined that Mr. Donham
did not assert a sufficient interest in the project areas to
constitute a concrete and particularized injury from the dis-
32 No. 03-4041
missal of his appeal. He lives far from the project areas, and
does not claim that the Pole Lake or Plantation Lakes
projects prevent him from using areas of the national parks.
Cf. Friends of the Earth, 528 U.S. at 181-83 (finding injury to
plaintiffs living from one-quarter to two miles from project
site). His submissions do not indicate that he has visited the
Pole Lake project, only a generalized interest in the
Hiawatha Forest as a whole, Nat’l Wildlife Fed’n, 497 U.S. at
887 (rejecting plaintiff’s claim of injury based on use of
land “in the vicinity” of the project area), and there are no
indications of planned future visits to either project area.
We also note that his past visits to the area cannot serve as
the basis for his injury, and his vague “ ‘some day’ inten-
tions—without any description of concrete plans, or indeed
even any specification of when the some day will be—do
not support a finding of the ‘actual or imminent’ injury that
our cases require.” Lujan, 504 U.S. at 564.
Mr. Donham averred a specific injury to his interest in the
Plantation Lakes area of Ottawa National Forest resulting
from the dismissal of his appeal. The environmental impact
statement (“EIS”) and record of decision (“ROD”) released
in connection with the project did not include information
that he provided about the location of a red-shouldered
hawk nest. Mr. Donham argues that consideration of his
appeal would result in disclosure of this site and protection
22
of the nest. This threatened injury to a protected species is
22
The Forest Service confirms that Mr. Donham reported this
nest, but asserts that his argument is without merit because the
EIS/ROD was signed on June 11, 2001, fourteen days before his
sighting. As Mr. Donham based his appeal on the EIS/ROD, the
Service believes that the nest, which he found after the Service’s
decision, cannot be the basis of any claimed injury. The Forest
(continued...)
No. 03-4041 33
purely conjectural, but even if we assumed that the injury
is concrete and particularized, Mr. Donham offers “no
facts . . . showing how damage to the species will produce
imminent injury” to him. Lujan, 504 U.S. at 564 (internal
quotation omitted). Significantly, Mr. Donham does not
aver any damage to his aesthetic or recreational interest in
Ottawa National Forest—where he admittedly has spent
more time—beyond this interest in seeing the red-shoul-
dered hawk nest protected.
As for Hiawatha National Forest, Mr. Donham’s submis-
sions indicate only that his aesthetic or recreational inter-
ests are harmed because “[l]ogging a forest degrades it for
wildlife such as Scarlet tanager and therefore injures [his]
use and enjoyment of the forest.” R.50 ¶ 7. His assertion is
a claim that logging generally harms aesthetic interests.
Given that he demonstrated no ties to the Hiawatha forest
and failed to show how the Pole Lake project would injure
his enjoyment of the Hiawatha forest, his complaint about
general logging is an interest insufficient to confer stand-
ing.
Mr. Donham has suffered no injury from the Forest
Service dismissing his appeal. We therefore affirm the district
court’s determination that Mr. Donham does not have
standing to challenge the Service’s decision.
At the time of this action, Mr. Bensman resided in
Wood River, Illinois—closer to Mark Twain National Forest
than Mr. Donham was to the areas of his responsibility, but
still not on or near the national park. His declaration to the
22
(...continued)
Service’s argument might have merit if the issue was injury from
the EIS/ROD, but Mr. Donham claims injury from the dismissal
of his appeal, which attempted to amend the EIS/ROD to include
this nest.
34 No. 03-4041
district court was both more detailed and more definite
than that of Mr. Donham:
I have personally used and enjoyed the Mark Twain
National Forest including the Chadwick project area for
more than 20 years for outdoor recreation, canoeing,
camping, hiking, scientific study, photography, bird
watching, plant identification, nature study, and
solitude. I have been to the Chadwick area about a half
dozen times. My first visit was April 9-10, 1993. My
most recent visit was May 20, 2000. My past use of the
Chadwick area includes hiking, wildlife viewing, na-
ture study, and photography. I plan to continue to use
the Chadwick area including a trip this winter or next
spring.
R.38, Ex.2 ¶ 3. Mr. Bensman also described the harm that
would result to his recreational interest in the Chadwick
Trails area if the Service did not consider his appeal, noting
that “[t]he Forest Service’s dismal [sic] of my appeal harms
me as the appeal asked for the area to be closed to ATVs
and ORVs. If this relief was granted, my future hikes in the
area would be much more enjoyable.” R.38, Ex.2 ¶ 6.
Mr. Bensman has demonstrated both sufficient interest in
the Mark Twain National Forest and sufficient possibility
of injury to that interest to have constitutional standing to
challenge the Service’s decision. While his past visits are
not dispositive, they are sufficient in number and in tem-
poral proximity to lend credence to his plans to return to
the forest “this winter or next spring.” His intention to re-
turn is expressed more concretely than the vague plans
rejected in Lujan. He has demonstrated an interest in the
particular area in question here, rather than just the forest
as a whole, in his statement that he visited the Chadwick
Trails area “about a half-dozen times.” In addition, he has
No. 03-4041 35
demonstrated how the project at issue, which concerns the
routing of off-road vehicle trails, will hurt his enjoyment of
the land.
We therefore agree with the district court that Mr. Bensman
23
has standing to challenge the Service’s dismissal of his
administrative appeal, but based on his interest in the land.
B. Equitable Estoppel and Equitable Tolling
Because we conclude that Mr. Bensman has standing, we
must determine whether the lateness of his filing is excused
by the application of either the doctrine of equitable tolling
or the doctrine of equitable estoppel.
The Forest Service’s decision to dismiss the appeal as
untimely may only be set aside if arbitrary and capricious.
5 U.S.C. § 706; Common Cause, 108 F.3d at 415. The ARA and
Service regulations governing the time period during which
a notice and comment participant may appeal a Service
decision were non-permissive. The ARA provides that a
party may appeal “[n]ot later than 45 days after the issuance
23
In addition to the constitutional question of standing, which
satisfies the “case” or “controversy” requirement of Article III,
“the federal judiciary has also adhered to a set of prudential prin-
ciples that bear on the question of standing.” Valley Forge
Christian Coll. v. Americans United for Separation of Church & State,
Inc., 454 U.S. 464, 474 (1982). These prudential considerations,
which may be abrogated by Congress, require a plaintiff to iden-
tify the agency action affecting his interests, see Found. on Econ.
Trends v. Lyng, 943 F.2d 79, 83 (D.C. Cir. 1991), and to demon-
strate “that [the] plaintiff’s grievance must arguably fall within
the zone of interests protected or regulated by the statutory
provision . . . invoked in the suit,” Bennett v. Spear, 520 U.S. 154,
162 (1997). Although the ARA does not provide a right to in-
formation, it does serve to protect a plaintiff’s interest in the land.
We thus find no reason to deny Mr. Bensman standing on
prudential grounds.
36 No. 03-4041
of a decision of the Forest Service.” 16 U.S.C. § 1612 note (c)
(emphasis added). Service regulations clarified that, for
appeal purposes, the date of issuance was the date that
notice of the decision was published in an identified news-
paper of record. 36 C.F.R. § 215.9. The 45-day window
opened on the date of publication, id. § 215.13, and the
regulation mandated that the Service “shall dismiss an
appeal without review when” an appeal was postmarked
after the 45-day period ended, id. § 215.15(a)(1) (emphasis
added). The parties here do not contest that the appeals of
both Mr. Bensman and Mr. Donham were postmarked after
the 45-day window closed, and the Service had no choice
but to dismiss their submissions. We cannot say that, in the
absence of equitable tolling or equitable estoppel, the Forest
Service’s decision to dismiss the appeals without consider-
ation was arbitrary and capricious because the Service had
no discretion to do otherwise.
Mr. Bensman invokes the doctrines of equitable tolling
and equitable estoppel, arguing that the Forest Service is
barred from dismissing his appeal as untimely when the
Service itself supplied him with incorrect 45-day calcula-
tions. Nevertheless, we believe that the doctrines of equit-
able tolling and equitable estoppel are inapplicable here.
The district court expressed doubt that the doctrines of
equitable tolling and equitable estoppel could be applied to
decisions of the Forest Service. Indeed, this court “may not
extend the time to file . . . a notice of appeal from . . . or
otherwise review an order of an administrative agency . . .
unless specifically authorized by law.” Fed. R. App. P.
26(b)(2); see Nowak v. INS, 94 F.3d 390, 391 (7th Cir. 1996).
There appears to be no such authority in the ARA, nor have
the parties invited our attention to any. We need not deter-
mine the doctrines’ applicability to Service decisions in this
case, however, because we agree with the district court that
No. 03-4041 37
Mr. Bensman has not made the showing necessary to war-
rant application of either equitable tolling or equitable
estoppel.
Equitable tolling is a doctrine used sparingly, reserved
for those situations in which extraordinary circumstances
prevent a party from filing on time. Wilson v. Battles, 302
F.3d 745, 749 (7th Cir. 2002). It applies only to cases in
which circumstances prevent a litigant from filing despite
the exercise of due diligence, id. at 748, regardless of the
defendant’s conduct, Bishop v. Gainer, 272 F.3d 1009, 1014
(7th Cir. 2001). The district court’s critical inquiry is thus
whether the plaintiff has exercised due diligence, a finding
that we review for clear error. Montenegro v. United States,
248 F.3d 585, 591 (7th Cir. 2001), overruled on other grounds
by Ashley v. United States, 266 F.3d 671 (7th Cir. 2001); see
Drew v. Dep’t of Corrs., 297 F.3d 1278, 1287 n.2 (11th Cir.
2002) (collecting cases).
The district court determined that Mr. Bensman could have
filed within 45 days of the Service’s decision publication.
He was experienced with the agency’s appeals process. He
had access to the necessary information, and, indeed, the
Service’s decision notices directed his attention to the appli-
cable regulations. Further, the Service’s mailings alerted
Mr. Bensman that the dates were not definite, because they
noted a “planned” publication date. Although Mr. Bensman
argues that he cannot afford to subscribe to every newspa-
per of record and thus relies on the Service-provided dates,
the argument is merely one factor to weigh in the due
diligence inquiry. We can find no clear error in the district
court’s determination that Mr. Bensman could have filed in
time had he exercised due diligence. We therefore find no
error in the district court’s refusal to equitably toll the
regulatory filing requirements.
38 No. 03-4041
Equitable estoppel is a limited doctrine that applies only
when a “ ‘defendant takes active steps to prevent the
plaintiff from suing on time.’ ” Brademas v. Indiana Hous. Fin.
Auth., 354 F.3d 681, 687 (7th Cir. 2004) (quoting Sharp v.
United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001)). A
plaintiff invoking equitable estoppel against the Government
must show that the agency engaged in affirmative miscon-
duct rather than mere negligence. Lewis v. Washington, 300
F.3d 829, 834 (7th Cir. 2002). Although Mr. Bensman argues
that the Service’s dismissal of his appeal after providing
incorrect dates constitutes “blameworthy conduct,”
Appellants’ Br. at 43-47, he has not demonstrated any af-
firmative misconduct. There is no evidence that the Forest
Service intended to mislead him; at worst the Service negli-
gently miscalculated the correct appeal dates. Without a
showing of affirmative misconduct, equitable estoppel is
24
unavailable to Mr. Bensman.
24
In Edgewater Hospital, Inc. v. Bowen, 857 F.2d 1123 (7th Cir.
1988), amended on other grounds, 866 F.2d 228 (7th Cir. 1989), the
plaintiff had 180 days to appeal an unfavorable reimbursement
notice, but the Government issued a second notice stating that the
provider had 180 days to appeal from the second notice. This
court held that the 180-day period ran from the first notice and
that the mistaken second notice was not sufficient to invoke
equitable tolling. See also Dawkins v. Witt, 318 F.3d 606, 611 (4th
Cir. 2003) (holding that misrepresentations that the agency would
not enforce 60-day filing deadline were insufficient to trigger
equitable estoppel). But see Bailey v. West, 160 F.3d 1360, 1365
(Fed. Cir. 1998) (finding that court of veterans claims could
equitably toll 120-day filing limit if agency induced veterans’
reliance, even without showing of misconduct).
A few cases emphasize the related point that equitable tolling
or estoppel may not lie in the face of Government error when the
statutory requirements are clear. As applied, the ARA does not
(continued...)
No. 03-4041 39
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
24
(...continued)
appear to give the Service discretion to hear an untimely appeal.
See 16 U.S.C. § 1612 note (c) (“Not later than 45 days after the date
of issuance of a decision . . . .”); Trapper Mining Inc. v. Lujan, 923
F.2d 774, 781 (10th Cir. 1991) (holding 1989 readjustment of lease
appropriate, although agency earlier promised not to readjust
until 1999, because “ ‘the United States is neither bound nor
estopped by acts of its officers or agents in entering into an ar-
rangement or agreement to do or cause to be done what the law
does not sanction or permit.’ A party who enters an arrangement
with the government and relies on an official’s interpretation of the
law ‘assume[s] the risk that that interpretation [is] in error.’ ”
(citations omitted)); see also In re Larson, 862 F.2d 112 (7th Cir.
1988) (noting that reliance on erroneous IRS agent advice not
reasonable when provisions of Bankruptcy Code were clear). The
appellants bear the ever-present risk that a Government agent
may offer erroneous information. See Trapper Mining, 923 F.2d at
781; S & M Invest. Co. v. Tahoe Reg’l Planning Agency, 911 F.2d 324,
329 (9th Cir. 1990) (citing Schweiker v. Hansen, 450 U.S. 785 (1981),
and noting that there is always the risk that misinformed agency
employees may err in their regulatory interpretation; such error
does not rise to the level of affirmative misconduct). It is particu-
larly appropriate for the appellants to bear the risk of error
where, as here, they are experienced in working with the
Government. See Boulez v. Comm’r of Internal Revenue, 810 F.2d
209, 218 n.68 (D.C. Cir. 1987); see also Lehman v. United States, 154
F.3d 1010, 1017 (9th Cir. 1998) (noting that plaintiffs were not
ignorant of relevant facts in part because statutory limitations
requirement was clear).
40 No. 03-4041
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-2-05