Sierra Club v. Peterson

Recent Case Development: Sierra Club v. Peterson (Sept. 20, 2000)

Fifth Circuit En Banc Denies Jurisdiction to Conduct
Program-Wide Review or Issue Program-Wide Injunctions Against Federal Agencies
By J. Michael Klise & Thomas R. Lundquist*

On September 20, the Fifth Circuit held en banc (by an 8-5 vote) that national forest-wide judicial review and forest-wide injunctions are impermissible.  Sierra Club v. Peterson, __ F.3d __, 2000 WL 1357506 (5th Cir. Sept. 20, 2000).  The Fifth Circuit vacated and remanded a district court decision that enjoined U.S. Forest Service timber harvesting in the National Forests of Texas due to on-the-ground Forest Service violations of the National Forest Management Act (“NMFA”).  Under Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), challenges to final agency actions are limited to challenges of identifiable, particularized events, and do not include programmatic challenges.  The majority opinion reads Lujan as meaning that a national forest-wide collection of individual timber-related actions is not a reviewable “agency action” under the Administrative Procedure Act (“APA”).  Consequently, the district court lacked APA jurisdiction to conduct a forest-wide trial and to issue an forest-wide injunction.

The en banc opinion also stresses that the separation of powers respect for the Executive Branch and issues of institutional competence support both deference to the agency and the absence of judicial review of agency programs.  As the court stated, “Lujan thus announced a prohibition on programmatic challenges: ‘respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made.’  [I]nstitutional limits on courts . . . constrain our review to narrow and concrete actual controversies.  We thereby not only avoid encroaching on other branches of government, but we continue to respect the expert judgment of agencies specifically created to deal with complex and technical issues.”  2000 WL 1357506 at *5. 

The court further held that the ability to challenge a site-specific action “does not allow the environmental groups to challenge an entire program by simply identifying specific allegedly-improper final agency actions within that program, which is precisely what they did here. . . . Instead, the necessary institutional limitations on courts which Lujan identified limit our review of agency action to only specific and final agency actions.”  The majority opinion also held that forest-wide review was not permissible as an APA claim for “failure to act” in conformance with the NFMA.  2000 WL 1357506 at *6.

The majority opinion also provides precedent on matters other than the “final agency action” concept, finding that: (1) challenges to “completed timber sales” are “moot”; and (2) challenges to forest-wide inventorying and monitoring that “has not yet resulted in any legal consequences” to plaintiffs “are not ripe” for review.  2000 WL 1357506 at *13 n.11.  These rulings further limit the subject matter for, and the scope of, judicial review and injunctive relief.

There are now four strong rulings that federal courts lack jurisdiction to consider forest-wide challenges or to grant forest-wide injunctions.  The rulings consist of: (1) the Supreme Court’s decision on “final agency action” and ripeness grounds in Lujan, 497 U.S. at 891-94, 899; (2) the Supreme Court’s unanimous decision that challenges to a forest plan are not ripe in Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998); (3) the Ninth Circuit’s decision that a challenge to the quality of forest-wide wildlife inventory data was not ripe and was not a “final agency action” with definite consequences in Ecology Center v. U.S. Forest Service, 192 F.3d 922 (9th Cir. 1999); and (4) the Fifth Circuit’s en banc decision in Sierra Club v. Peterson that the “final agency action” concept prevents APA review of national forest-wide challenges and prevents forest-wide injunctions.

The decision provides precedent and persuasive reasoning for limiting the actions subject to review, and the scope of review and relief available, in a wide variety of suits brought by environmental groups.  As the Fifth Circuit found, “[r]equiring plaintiffs to challenge individual timber sales may place a higher burden on environmental groups” and make any site-specific injunction less meaningful, but courts are not the “proper body” to address the broad policy issues on which environmental groups often seek judicial relief.  2000 WL 1357506 at *8.

*Messrs. Klise and Lundquist, attorneys with the Washington, D.C. law firm Crowell & Moring LLP, represented the successful intervenor-defendants-appellants, Southern Timber Purchasers Council and Texas Forestry Association, in Sierra Club v. Peterson.


2003 The Federalist Society