Ouachita Watch League v. United States Forest Service ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1952
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Ouachita Watch League; Newton County Wildlife Association; Shawn Porter; G.
Thomas McKinney; David Reagan; Susan Gateley; Robert B. Leflar; Sarah May
Leflar; Kimberly Ison; John Ison; Billy Lindsey; Carol Lindsey; James Mitchell;
Ruth Mitchell; John Lawrence Poff
lllllllllllllllllllll Plaintiffs
Ozark Society
lllllllllllllllllllll Plaintiff - Appellant
v.
United States Forest Service; Judith L. Henry, Forest Supervisor, Ozark-St.
Francis National Forests; Department of Agriculture; Department of Interior,
Bureau of Land Management; Department of Defense, United States Army Corps
of Engineers, Little Rock District; United States Department of the Army; Bureau
of Land Management; Dr. John Lyon, in his official capacity of Eastern States
Director, Bureau of Land Management; Bruce Dawson, in his official capacity as
Eastern States Field Manager, Bureau of Land Management
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: January 11, 2017
Filed: May 30, 2017
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Before SMITH1 and KELLY, Circuit Judges, and SIPPEL, District Judge.2
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SMITH, Circuit Judge.
The United States Forest Service (“Forest Service”) developed a management
plan for the Ozark–St. Francis National Forests and analyzed the plan’s
environmental effects in 2005. At that time, the Forest Service anticipated 10–20 new
natural-gas wells within ten years. That expectation arose from projections about
natural-gas development in north central Arkansas’s Fayetteville Shale Play. The
projection missed the mark. Three years later, the Forest Service discovered that the
better prediction was not 10–20 new wells, but 1,730. It nevertheless concluded, after
consulting various experts, that this 85-fold increase in predicted drilling did not
require a “correction, supplement, or revision” to the original environmental analysis.
The Ozark Society (“the Society”) challenges this conclusion, contending that the
Forest Service did not look hard enough at the environmental effects of drilling 1,730
wells versus 10–20. Because the Society has not identified any particular member
who stands to be harmed by the government action it challenges, it lacks a concrete
interest in this dispute, and we must dismiss for lack of jurisdiction.
I. Background
The National Forest Management Act of 1976 requires the Secretary of
Agriculture to develop “land and resource management plans” for each national
forest. 16 U.S.C. § 1604(a); see also Ohio Forestry Ass’n, Inc. v. Sierra Club, 523
U.S. 726, 728–29 (1998). This duty devolves to the Forest Service, which manages
1
The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
2
The Honorable Rodney W. Sippel, Chief Judge, United States District Court
for the Eastern District of Missouri, sitting by designation.
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the national-forest system. Ohio Forestry Ass’n, 523 U.S. at 729. Another act, the
National Environmental Policy Act, requires that “major Federal actions significantly
affecting the quality of the human environment”—such as the development of a land
and resource management plan—be accompanied by an environmental impact
statement. 42 U.S.C. § 4332(2)(C)(i). An agency must supplement an environmental
impact statement if there is major federal action yet to occur and it discovers
significant new information “relevant to environmental concerns and bearing on the
proposed action.” 40 C.F.R. § 1502.9(c)(1)(ii); see also Norton v. S. Utah Wilderness
All., 542 U.S. 55, 72–73 (2004). The Forest Service policy manual requires it to
explain its decision not to supplement an environmental impact statement in a
document sometimes called a “Supplemental Information Report” (SIR). Forest
Service Handbook 1909.15 § 18.1. This case concerns a 2010 SIR involving the
Ozark–St. Francis National Forests.
The Ozark and St. Francis national forests are two separate national
forests—one mostly in northern Arkansas’s Ozark Mountains and the other in eastern
Arkansas’s delta region—that are managed together. The latest management plan for
these forests dates from 2005. It took four years to develop. This “major federal
action” required an environmental impact statement. That statement, also published
in 2005, exceeds 500 pages. It notes 49 active gas wells in the Ozark National Forest
and anticipates 10–20 new wells within ten years.
By 2007, discovery of natural gas in north central Arkansas led to a boom in
drilling in the Fayetteville Shale. See Thomas A. Daily & W. Christopher Barrier,
Well, Now, Ain’t That Just Fugacious!: A Basic Primer on Arkansas Oil and Gas
Law, 29 U. Ark. Little Rock L. Rev. 211, 211 (2007). That year, the Forest Service
asked the Bureau of Land Management to make an updated prediction about future
gas development in the Ozark National Forest. In 2008, the Bureau came back with
a number more than 85-times higher than the Forest Service’s original prediction:
1,730 new wells. The Forest Service talked to specialists over the next two years and
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in 2010 issued a SIR. It concluded that this dramatic increase in predicted drilling
required no “correction, supplement, or revision” to the original environmental
impact statement. In effect, the agency concluded that the original statement was still
reliable.3
The Society sued various federal-agency defendants in October 2011 to
challenge the decision embodied in the 2010 SIR.4 The Society is a nonprofit
conservation and recreation group that seeks to protect the natural character of
Arkansas’s Ozark Mountains, particularly its scenic wilderness. The Society sought
a judgment declaring that the 2010 SIR decision was arbitrary and capricious and
therefore in violation of the Administrative Procedures Act. It also sought to enjoin
further mineral leasing in the Ozark National Forest. The district court held that the
Society had standing to sue but denied preliminary injunctive relief. It later granted
summary judgment to the federal agencies for four reasons. First, the 2010 SIR was
not a final agency action subject to judicial review. Second, the Forest Service was
not obligated to supplement the 2005 environmental impact statement. Third, the
federal agencies did not have to allow public participation when deciding whether to
supplement the environmental impact statement. And fourth, the Society’s challenge
to one particular drilling permit was moot because the well had already been drilled.
The Society appeals.
3
It turns out that the 10–20 well prediction was closer to reality than the later
1,730 well prediction. In 2014, the Forest Service noted that “[f]rom 2006 through
2013 forty one producing natural gas wells, five exploratory wells, and two non
producing or dry holes have been developed on the Forest . . . . During the last two
years, no natural gas wells have been developed on the Forest.”
4
As defendants, the Society joined the Forest Service, the Bureau of Land
Management, the Supervisor of the Ozark–St. Francis National Forests, the Eastern
States Director of the Bureau of Land Management, and the Eastern States Field
Manager of the Bureau of Land Management.
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II. Discussion
First we must address whether the Society has standing to challenge the agency
action at issue. Our constitutional responsibility is to “redress or prevent actual or
imminently threatened injury,” and unless a party has suffered such an injury, we
have “no charter to review and revise . . . executive action.” Summers v. Earth Island
Inst., 555 U.S. 488, 492 (2009). Put another way, we may adjudicate only “Cases”
and “Controversies.” U.S. Const. art. III, § 2, cl. 1. The doctrine of standing keeps us
to this business. It requires, among other things, that the plaintiff have an actual or
imminent injury before invoking a federal court’s aid. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560–61 (1992). The injury need not be physical; harm to recreational or
esthetic interests may suffice. Summers, 555 U.S. at 494. And the injury need not be
asserted directly by the injured party; organizations like the Ozark Society may assert
the standing of their members. Id. But “generalized harm to the forest or the
environment will not alone support standing.” Id.
Having a “specific and concrete plan . . . to enjoy the national forests”
distinguishes a particular harm to a recreational interest from mere generalized harm.
Id. at 495. When the plaintiff is a group, this plan must belong to an identified group
member, not merely to the group at large. Id. at 498; see also Associated Gen.
Contractors of Am., San Diego Chapter, Inc. v. Cal. Dep’t of Transp., 713 F.3d 1187,
1194 (9th Cir. 2013). The burden of establishing the specific plan of an individual
member to enjoy the forest—in other words, the burden to establish standing—rests
on the party asking a federal court to adjudicate its dispute. Lujan, 504 U.S. at 561.
The district court in this case concluded that the Society’s “allegations and the
affidavit of Robert Cross . . . adequately set forth alleged concrete and particularized
harm which will result from the drilling activities.” Paragraph 12 of the Society’s
complaint describes the organization’s background and its relationship with the Ozark
National Forest:
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The Ozark Society membership utilizes the Ozark National Forest,
roadless areas, wilderness areas, and wild and scenic rivers for hiking,
boating, and other outdoor recreation activities. The Ozark Society
regularly schedules outings in the Ozark National Forest. . . . The Ozark
Society has a vested interest in the environmental health of the Ozark
National Forest.
Paragraph 80 describes the harm flowing from the defendants’ actions:
The defendants have engaged in a course of action which has caused,
and will continue to cause, irreparable environmental harm in the Ozark
National Forest. This harm causes a direct adverse impact on the Ozark
Society’s interest. The defendants have also denied the Ozark Society
and the public the right to participate in the [National Environmental
Policy Act] process for assessing such environmental harm. The
defendants’ actions have caused harm to the Ozark Society’s interest in
the management and environmental well-being of the Ozark National
Forest, and the Ozark Society’s ability to participate in those
management decisions.
The other alleged support for standing comes from the declaration of Robert Cross,
the Society’s President. Cross declared that he has led and participated in hikes in the
Ozark National Forest. He also recalled the Society holding a meeting there.
On de novo review, Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006), we
conclude that the complaint and declaration do not establish the Society’s standing.
Paragraph 80 is a series of general and conclusory legal allegations—it provides no
facts about how the defendants’ actions have harmed or will harm the Society, and
it speaks only for the Society as a whole, rather than for an identified member.
Paragraph 12 does allege that the Society “regularly schedules outings” in the Ozark
National Forest, which might be sufficient to establish a specific plan to use the
Forest in the future because it implies an ongoing use. Yet paragraph 12, like
paragraph 80, attributes this plan only to the Society generally, rather than to an
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identified member. It stands to reason that some of the Society’s members share the
group’s mission but not its use of the Forest. And while it is statistically probable that
paragraph 12’s language describes at least one particular member, “[t]his requirement
of naming the affected members has never been dispensed with in light of statistical
probabilities, but only where all the members of the organization are affected by the
challenged activity.” Summers, 555 U.S. at 498–99. The Society has not argued that
the Forest Service’s actions necessarily would affect all its members in a concrete
way, and we would have to speculate to conclude as much. The Cross declaration
presents the opposite shortcoming: it identifies a particular member with no stated
plan to enjoy the Forest in the future. See id. at 495.
The Society attempts to distinguish Summers by pointing out that the parties
there had resolved their dispute about a particular forest project. But Summers also
noted that the plaintiffs had “identified no other application of the invalidated
regulations that threatens imminent and concrete harm to the interests of their
members.” Id. The Court came to this conclusion after considering an affidavit that
showed no “specific and concrete plan” by a particular member to enjoy the national
forests. Id. The Society also notes that the agency action in Summers involved
agency-wide regulation while this case involves a single agency decision. Assuming
this is a distinction, it still does not supply any member of the Society with an interest
in the national forests affected by this agency decision.
Nor are we persuaded that this case is like Pacific Rivers Council v. United
States Forest Service, on which the Society relies. 689 F.3d 1012 (9th Cir. 2012),
vacated as moot, 133 S. Ct. 2843 (2013). In Pacific Rivers, the organization’s
chairman declared that he lived near and frequented the potentially affected area. Id.
at 1022. The Ninth Circuit concluded that the chairman had “clearly stated that he and
a number of Pacific Rivers’ members have used, and will continue to use, the national
forests in the Sierras in a variety of places and in a variety of ways.” Id. The Society,
on the other hand, has alleged only that as a group it regularly uses the Ozark
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National Forest and that one identified member has used it in the past. This is short
of the mark.
Because the Society challenges federal action affecting the Ozark National
Forest without alleging that a particular member has a specific plan to use that forest,
there is no case or controversy before us, and we lack authority to adjudicate this
dispute.
III. Conclusion.
Accordingly, we dismiss the appeal for lack of jurisdiction.
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