(CN) – In an opinion by Justice Antonin Scalia, a sharply divided U.S. Supreme Court overturned the 9th Circuit and found that environmentalists do not have standing to challenge thousands of “salvage timber” sales by the U.S. Forest Service. Scalia was dismissive and biting in portions of his opinion challenging the harm claimed by environmentalists, while also calling the dissent’s position “hitherto heard-of.” Justice Stephen Breyer answered by suggesting the majority is “blind to what is known to every intelligent person.”
The controversy involves a section of the Sequoia National Forest in California that burned in the summer of 2002. The U.S. Forest Service decided to sell the right to salvage a 238-acre parcel of the national forest called the Burnt Ridge Project.
The forest service does not allow comment on salvage timber sales of 250 acres or less, and it concedes that it has allowed “thousands”of such sales.
A group of environmental organizations challenged the sale and the matter was ultimately settled concerning the Burnt Ridge Project. But the parties continued their fight over the rule and the unchallenged authority it gave to the forest service when it came to parcels damaged by fire.
The trial court judge and the 9th Circuit agreed with the environmentalists and overturned the forest service rule, issuing a nationwide injunction in the process.
Joined by Justice Anthony Kennedy, the conservatives of the high court — Justices Scalia, Roberts, Alito and Thomas — rejected the federal appeals court’s ruling based on a procedural basis of standing, saying the traditional “case or controversy” requirement for jurisdiction had not been met. In sometimes sarcastic language, the majority opinion belittled the harm claimed by the environmentalists.
Scalia said the dissent’s “novel approach” on that subejct would “make a mockery of our prior cases.”
“The dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury,” Scalia wrote in a 12-page ruling.
“Since, for example, the Sierra Club asserts in its pleadings that it has more than ‘700,000 members nationwide, including thousands of members in California’ who ‘use and enjoy the Sequoia National Forest,’ it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service’s procedures and will suffer (unidentified) concrete harm as a result.”
Scalia mocked one of the the plaintiff affidavits: “Here we are asked to assume not only that Bensman will stumble across a project tract unlawfully subject to the regulations, but also that the tract is about to be developed by the Forest Service in a way that harms his recreational interests, and that he would have commented on the project but for the regulation. Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact.”
In a 10-page dissent joined by Justices Steven, Souter and Ginsburg, Breyer wrote: “The Forest Service admits that it intends to conduct thousands of further salvage-timber sales and other projects exempted under the challenged regulations `in the reasonably near future.'”
“How then can the Court deny that the plaintiffs have shown a ‘realistic’ threat that the Forest Service will continue to authorize (without the procedures claimed necessary) salvage-timber sales, and other Forest Service projects, that adversely affect the recreational, aesthetic, and environmental interests of the plaintiffs’ members?”
Taking a shot at the intelligence level of the majority, Breyer wrote in conclusion: “These allegations and affidavits more than adequately show a `realistic threat’ of injury to plaintiffs brought about by reoccurrence of the challenged conduct-conductthat the Forest Service thinks lawful and admits will reoccur. Many years ago the 9th Circuit warned that a court should not `be blind to what must be necessarily known to every intelligent person.’ In re Wo Lee, 26 F. 471, 475 (1886). Applying that standard, I would find standing here.”