Motorized Issues Ripe For Review

Road activists involved with litigation know that technicallegal doctrines can determine whether plaintiffs are able to sue a federalagency. For example, courts require a plaintiff to have "standing"before the court will hear their case. In the wake of an environmental setback from a unanimous U.S. Supreme Court decision in OhioForestry Association v. Sierra Club, 1998 WL 244192 (May 18, 1998), activistsalso will have to consider the doctrine of "ripeness" before suing overcertain Forest Service actions. While this ruling limits challenges of timber harvest provisions of Land and ResourceManagement Plans (Management Plans) pursuant to the National ForestManagement Act (NFMA), the decision still allows activists to challenge road building.

The Decision

Sierra Club and others (Club) sued the Forest Service, claiming theManagement Plan for the Wayne National Forest (Plan) permitted below-costtimber sales by clearcutting, in violation of NFMA. The Plan permitted loggingon 126,000 acres of the 178,000 acre forest. However, itset a ceiling on the amount that could be cut, allowing logging on about 8,000 acres during the decade, including about 5,000 acres of clearcuts or other even-aged cuts. Whilethe District Court decided that the Forest Service had acted lawfully, theCourt of Appeals for the Sixth Circuit reversed, finding the Planimproperly favored clearcutting and violated NFMA. However, the U.S. SupremeCourt (Court) ruled that the suit was nonjusticiable because it was not"ripe for court review," and vacated the Court of Appeals' decision.

Judicial Ripeness

In its ruling, the Court initially discussed the purpose of the ripeness requirement. It is designed to avoid premature adjudication and prevent the courtsfrom entangling themselves in abstract disagreements over administrativepolicies. It also protects agencies from judicial interference until anadministrative decision has been formalized and its effects felt in a concreteway by the challenging parties. In the Court's view, several factors led tothe conclusion that the NFMA challenge to the Management Plan was not ripe.

The Court first reasoned that to withhold court consideration at the presentwould not cause the parties significant hardship. While the Plan makes logging more likely in that it is a preconditionto logging, the Plan "does not give anyone a legal right to cut trees, nordoes it abolish anyone's legal authority to object to trees' being cut." ThePlan's timber provisions did not, in the Court's view, inflict significantpractical harm on the environmental interests theClub had argued in the case, because "before the Forest Service can permitlogging, it must focus on a particular site, propose a specific harvestmethod, prepare an environmental review, permit the public an opportunity tobe heard, and (if challenged), justify the proposal in court." Thus, theCourt did not find a "strong reason" why the Club must bring its challengeagainst the Plan's timber provisions. The Club will have opportunity tofile a lawsuit challenging clearcutting whenever the Forest Service proposes a particular clearcut. At that time, the Court believes, the harm will be "more imminent and certain."

The Court also reasoned that from the agency's perspective, immediate judicialreview directed at the lawfulness of clearcutting could hinder agency effortsto refine its policies through revisions to the plan or to application of thePlan in practice (e.g., in the form of site-specific proposals, which aresubject to review). The Court stated the real possibility thatthe Forest Service could further consider the Plan's contents, either throughplan amendments or successful appeals. Judicial review of the Club's claimsregarding clearcutting would require time-consuming consideration of thedetails of an elaborate, technically based plan which predicts consequencesthat may affect many different parcels of land in a variety of ways, and whicheffects themselves may change over time. The Court felt that judicial reviewof the Plan would take place without the benefit of the focus that aparticular logging proposal could provide.

Finding Opportunities

Ohio Forestry Association is a setback to those who would like to challengeManagement Plan provisions regarding timber harvests pursuant to NFMA. Nevertheless, the decision also suggests that portions of these plans involving road building still may be subject tojudicial review. When the Club was before the Supreme Court, it argued that the Plan also would hurt the Club in many other ways, suchas opening trails to motorcycles. The Courtresponded that contesting "the Plan's failure to close roads or to provide for the building of trails," had not been raised in the lowercourts. If the Club had previously raised theseother kinds of harm, the ripeness analysis would be "significantly different."The Solicitor General stated that if the Club's claim was that the "Plan wasallowing motorcycles into a bird-watching area," that claim would beimmediately justiciable. However, as these claims were not raised in thelower courts, the Supreme Court would not consider them.

In order to avoid dismissal of a challenge to a Management Plan on ripeness grounds, it must be clear how the Plan causes imminent injury. Ohio Forestry Association suggests that Management Plans that open aparticular area to off-road vehicles still are subject to legal challenge. Inaddition, when activists submit comments to the Forest Service on adraft Management Plan, they should clearly point out how the provisions regarding ORV trail or road construction will causeimminent, concrete injuries. It is well known that roads adversely affectwildlife and reduce the value of hiking areas, but activists should clearlydiscuss these injuries and, if possible, include studies or data that supportthe discussion.

Sidney Maddock is a lawyer for the Biodiversity Legal Foundation, and also serves on the Wildlands CPR Board of Directors.