858 F.3d 539
8th Cir.2017Background
- Forest Service adopted 2005 land/resource management plan and accompanying EIS for the Ozark–St. Francis National Forests; EIS anticipated 10–20 new gas wells over 10 years.
- Discovery of Fayetteville Shale led BLM (2008) to estimate 1,730 new wells—an ~85x increase over the 2005 projection.
- Forest Service consulted specialists and issued a 2010 Supplemental Information Report (SIR) concluding no correction, supplement, or revision to the 2005 EIS was required.
- Ozark Society sued (2011) seeking declaratory and injunctive relief, challenging the 2010 SIR as arbitrary and capricious under the APA and seeking to enjoin further mineral leasing.
- District court found Society had standing, denied injunctive relief, and granted summary judgment to agencies on multiple grounds; Society appealed.
- On appeal, the Eighth Circuit focused on Article III standing and dismissed for lack of jurisdiction because the Society failed to identify a particular member with a specific, imminent plan to use the affected forest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — Article III injury in fact | Society: organizational injury from environmental harm and lost participation rights; group outings show members will be affected | Agencies: Society failed to identify any particular member with a concrete, imminent plan to use the Ozark NF | No standing — organization did not identify a particular member with a specific plan to use the Forest; dismissal for lack of jurisdiction |
| NEPA supplementation obligation | Society: new 1,730-well projection is ‘‘significant new information’’ requiring a supplement to the 2005 EIS | Agencies: after review and SIR, no supplement or revision required because original EIS remained reliable | Not reached on merits due to standing ruling |
| Reviewability of the SIR decision | Society: SIR decision is final agency action subject to judicial review | Agencies: SIR not reviewable or in any event adequately considered | Not reached on merits due to standing ruling |
| Public participation requirement for supplementation decision | Society: agencies must allow public participation when deciding whether to supplement | Agencies: not required for this decision | Not reached on merits due to standing ruling |
Key Cases Cited
- Summers v. Earth Island Inst., 555 U.S. 488 (2009) (organization must identify a particular member with a concrete plan to use affected federal land to establish standing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete and particularized injury that is actual or imminent)
- Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998) (NFMA requires land/resource management plans accompanied by environmental review)
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (procedural requirements for NEPA supplementation and reviewability principles)
- Jones v. Gale, 470 F.3d 1261 (8th Cir. 2006) (standard of de novo appellate review of standing and related issues)
- Associated Gen. Contractors of Am., San Diego Chapter, Inc. v. Cal. Dep’t of Transp., 713 F.3d 1187 (9th Cir. 2013) (organization standing requires identification of affected members)
- Pacific Rivers Council v. United States Forest Service, 689 F.3d 1012 (9th Cir. 2012) (example where organizational standing satisfied by affidavit showing member use and intent)