Ninth Circuit Rejects Standing Based on Informational Injury

A three-judge panel of the Ninth Circuit today ruled in The Wilderness Society v. Rey that The Wilderness Society's claim for "informational injury" was insufficient to support Article III standing under the Supreme Court's 2009 ruling Summers v. Earth Island Institute.  The panel thus dismissed the Wilderness Society's case against the chief of the U.S. Forest Service challenging the Service's regulations as violating the Forest Service Decisionmaking and Appeals Reform Act (ARA).

The case involves three Forest Service regulations issued in 2003 that limited the Service's notice, comment, and appeals related to Service projects and activities implementing land and resource management plans.  Here's a quick summary of the regs, all in Title 36 C.F.R.:

• Sec. 215.20(b) exempts decisions of the Secretary and Under Secretary from notice, comment, and appeal requirements.

• Sec. 215.13(a) limits the right to appeal Forest Service decisions related to a land or resource management plan only to those who provided substantive comments on the plan.

• Sec. 215.12(f) exempts from appeal those projects that the Service finds not to have a significant effect on the environment.

The problem?  According to the Wilderness Society, the regs violate the ARA, which requires the unqualified application of notice, comment, and appeals procedures to "projects and activities implementing land and resource management plans."

With respect to 20(b), the Wilderness Society argued that it had an injury-in-fact supporting Article III standing based upon an "informational injury" resulting from "the violation of the obligation to provide notice."  The court rejected this argument.  It held that in order to support standing based upon an informational injury, "the ARA must grant a right to information capable of supporting a lawsuit."  Op. at 16110.  But the ARA grants no such right; rather, the ARA is designed "to allow the public opportunity to comment on the proposals."  "Notice is provided as a predicate for public comment"--a procedural right.  Op. at 16111. 

The ARA's requirement for information is merely instrumental--to support the public's participation--and only gives rise to the kind of procedural injury that Summers foreclosed for standing purposes.

The court distinguished a line of cases that found a statutory right to information, the violation of which did give rise to informational standing under the FOIA, the Fair Housing Act, the Clean Water Act, and the Federal Advisory Committee Act.  Op. at 16110.  The court quoted the Seventh Circuit to illustrate the difference here:

In short, statutes like FOIA and FACA that have served as the basis for informational standing have a goal of providing information to the public; the ARA's goal is simply to increase public participation in the decision-making process.  The difference in purposes seems to believe [the] claim that the ARA provides a right to information.

Op. at 16122 (quoting Bensman v. United States Forest Service, 408 F.3d 945 (7th Cir. 2005).

(The court also rejected the Society's claim for standing to challenge 12(f) based upon a member's recreational and aesthetic injuries.  The court ruled that the claimed injuries were not sufficiently specific.)

SDS