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Supreme Court to Decide Whether Citizens CanEffectively Challenge Illegal Government Rules

September 29, 2008

Supreme Court to Decide Whether Citizens Can Effectively Challenge Illegal Government Rules

Administration Seeks to Shield Logging, Drilling and Off-Road Vehicle Use on Forest Service Lands from Public Review

WASHINGTON, D.C.  The U.S. Supreme Court is set to decide whether the public can effectively challenge illegal government regulations and, in the process, will decide whether citizens have a voice in the management of national forests.

On Oct. 8, the high court will hear a case that started out as an important challenge to the Bush administration’s weakening of the public’s right to weigh in on major decisions impacting our national forests. The case began when conservation groups successfully challenged federal regulations issued in 2003 that eliminated the public’s ability to comment on and appeal U.S. Forest Service actions such as commercial timber sales, oil and gas development and off-road motorized vehicle use. The victory has been upheld on appeal and the administration’s request for a rehearing was denied.

However, the U.S. Supreme Court granted the government’s request to review the case – not on whether the limitations on public participation were permissible, but on a much larger issue that could make it virtually impossible for citizens to effectively challenge any regulation (not just environmental) issued by a federal agency. The Bush administration is arguing that the courts generally lack authority to hear cases brought by public interest or citizens’ groups that challenge federal regulations, and that even if a court can hear such a case, it can’t set aside a regulation nationwide, but only within its local jurisdiction.

“Right now, timber and mining companies are calling all the shots. Average citizens deserve a voice in how their forests are managed and how their tax dollars are spent,” said Sierra Club representative Aaron Isherwood. “By creating financial and logistical hurdles, the Bush administration is silencing citizens.”

“The government knows that the public interest community’s resources are limited, and that its position would allow unlawful government action — whether a timber sale or deprivation of personal rights — to go unchecked in most instances,” stated lead attorney Matt Kenna from the Western Environmental Law Center.  “Citizens must obey the law; there is no reason why governments should be allowed to continue violating the law once their actions are found to be unlawful.”   Kenna will present the case to the Supreme Court.

The case, Summers v. Earth Island Institute, has garnered significant interest.   State government, academic and public interest groups have filed amicus briefs siding with conservation groups. The timber and building industries have filed amicus briefs joining the government’s argument that a nationwide set-aside of an illegal regulation should be available only to plaintiffs with an economic interest at stake. 

“Obviously, that is a nonsensical and self-serving position,” stated Jim Bensman of Heartwood.   “This case is about whether or not the public has a right to be involved in the most important decisions that affect our public lands.   The number one priority for the Bush administration has been to reduce public accountability, and this has been especially true when it comes to logging on our National Forests.”

“Limiting justice to those who profit off our National Forests is against everything this country stands for,” said Ara Marderosian of the Sequoia ForestKeeper.   “One of the oldest rights recognized by our courts is the public’s right to protect its natural resources – which are owned by all – not just those who would earn a buck destroying them.”

If the government prevails in this case, the lower court ruling would be set aside, breathing new life into the Bush administration’s regulations that eliminated the public’s ability to comment on and appeal major U.S. Forest Service actions such as commercial timber sales, oil and gas development and off-road motorized vehicle use.

As stated by Marc Fink, an attorney with the Center for Biological Diversity: “This case is the latest attempt by the Bush administration to limit public involvement and close the courthouse door to those harmed by bad Forest Service decisions.”

“Public Citizen is assisting in this case because it could have an enormous impact not only in environmental cases, but also in public interest litigation generally,” Public Citizen attorney Scott Nelson said. “If the Court were to side with the government, it would significantly impair the ability of public interest organizations and ordinary citizens to hold government agencies accountable when they issue rules that are unlawful.”

Attorney Matt Kenna of the Western Environmental Law Center is presenting the case on behalf of Heartwood, Sierra Club, Center for Biological Diversity, Sequoia ForestKeeper and Earth Island Institute, along with attorney Scott Nelson of Public Citizen.

Background (For extensive case history, visit www.westernlaw.org)

The Bush administration unsuccessfully tried to create a backlash against conservationists and the original ruling by holding up permits for minor activities such as nut-gathering, mushroom-picking and hunting expeditions for people with disabilities, blaming it on the ruling. The administration even went so far as to say the ruling would prevent the cutting of the Capitol Christmas Tree. As noted in a 2005 Washington Post editorial, after the judge made clear that the Forest Service was again acting illegally, this case “should lead to more questions about the real motives of the agency that allegedly protects the nation’s forests.” (The Washington Post, Forest Service Sulk, editorial, 10/24/05)

Organizations Involved

The Center for Biological Diversityis a national nonprofit conservation organization with more than 180,000 members and online activists dedicated to the protection of endangered species and wild places.

Heartwoodis a network of grassroots organizations and individuals dedicated to the preservation of forest ecosystems and biological diversity in the eastern United States.

Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please visit www.citizen.org.  Through its Litigation Group !!!! and the Alan Morrison Supreme Court Assistance Project, Public Citizen provides aid to individuals and public interest groups litigating before the Supreme Court of the United States.

Sequoia ForestKeeperis a nonprofit conservation organization with world-wide membership and on-the-ground activists dedicated to protecting Sequoia National Forest, where this case originated.

Founded by John Muir in 1892, Sierra Clubis the nation’s oldest and largest grassroots environmental organization. The Sierra Club’s mission is to explore, enjoy and protect the planet.

The Western Environmental Law Centeris a nonprofit public interest law firm that works to protect and restore western wildlands and advocates for a healthy environment on behalf of communities throughout the West.