1

In September of 1992, a group of timber companies sought to

intervene as defendants in this action. The district court

granted them permissive intervention under Fed.R.Civ.P. 24(b) in

October of 1992. Hereafter, "appellees" will refer to all

defendants in the court below. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-9369.

WILDERNESS SOCIETY, et al., Plaintiffs-Appellants,

v.

John E. ALCOCK, as Regional Forester of the Southern Region of

the U.S. Forest Service, et al., Defendants-Appellees.

May 22, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:92-cv-1040-ODE), Orinda D. Evans,

Judge.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior

Circuit Judge.

TJOFLAT, Chief Judge:

On May 1, 1992, several environmental groups filed a complaint

in the district court against the Secretary of Agriculture and

officials of the United States Forest Service,1

 seeking review of

the 1986 Final Land and Resource Management Plan (the "Plan") for

the Cherokee National Forest. These groups alleged that the Plan

violates the National Forest Management Act, 16 U.S.C. §§ 1600 et

seq. (1994) ("NFMA"), and the regulations promulgated thereunder,

see 36 C.F.R. part 219 (1995). On cross motions for summary

judgment, the district court found that the environmental groups

lacked standing to bring a challenge to the Plan, and, further,

that they did not present a ripe controversy. The court therefore

granted summary judgment in favor of appellees. We affirm.
 2

The Secretary does not personally develop LRMPs. LRMPs are

prepared by the Forest Service under the direction of the

regional forester, the person responsible for the administration

of the forests within a region. 

 3The NEPA requires that an environmental impact statement be

prepared for "every recommendation or report on proposals for

legislation and other major Federal actions significantly

affecting the quality of the human environment." 42 U.S.C. §

4332(2)(C). 

I.

Section 1604(a) of the NFMA directs the Secretary of

Agriculture to "develop, maintain, and, as appropriate, revise land

and resource management plans ["LRMPs"] for units of the National

Forest System." 16 U.S.C. § 1604(a).2 Each LRMP is to "guide all

natural resource management activities and establish management

standards and guidelines for the National Forest System. [LRMPs]

determine resource management practices, levels of resource

production and management, and the availability and suitability of

lands for resource management." 36 C.F.R. § 219.1(b). In

developing a LRMP, the Secretary must consider: compliance with

the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-

4370d (1994) ("NEPA"),3 see 16 U.S.C. § 1604(g)(1); the diversity

of the plant and animal species in the forest, see 16 U.S.C. §

1604(g)(3)(B); the suitability of lands within the forest for

resource management, see 16 U.S.C. § 1604(g)(2)(A); the special

circumstances of the forest (e.g., the soil quality or available

water resources) that might affect the methods used to harvest

renewable resources and the amount of renewable resources that can

be harvested, see 16 U.S.C. § 1604(g)(3)(C)-(F); and the "economic

and environmental aspects of various systems of renewable resource
 4

The NFMA and its regulations provide for extensive

administrative review of a challenge to a LRMP. Since a LRMP is

a decision of the regional forester, a challenge to a plan is

appealed to the Chief of the Forestry Service. See 36 C.F.R. §

211.18(f)(1)(iii). The Chief responds to the challenge in a

written decision. This decision is sent automatically to the

Secretary of Agriculture, see 36 C.F.R. § 211.18(f)(2), who has

discretion to review the Chief's decision. In this case, the

Secretary declined to review the Chief's decision affirming the

regional forester's adoption of the Plan. 

 5

A federal statute provides that "[i]f the Secretary fails

to decide the appeal [of a decision of the Forest Service] ...,

the decision on which the appeal is based shall be deemed to be a

final agency action for the purpose of [the Administrative

Procedure Act]." Department of the Interior and Related Agencies

Appropriations Act, 1993, Pub.L. No. 102-381, § 322(d)(4), 106

Stat. 1374, 1419 (1992) (16 U.S.C. § 1612 note).

The APA gives "[a] person suffering legal wrong because

of agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute" a

right to judicial review of that agency action. 5 U.S.C. §

702. Agency action is subject to judicial review only if it

is "final agency action" or "[a]gency action made reviewable

by statute." 5 U.S.C. § 704. Since the NFMA does not

provide for judicial review of agency actions taken pursuant

management, including the ... protection of forest resources, to

provide for outdoor recreation (including wilderness), range,

timber, watershed, wildlife, and fish," see 16 U.S.C. §

1604(g)(3)(A).

In January of 1986, after several years of preparation, a

proposed LRMP for the Cherokee National Forest was circulated for

public comment. The Forest Service received comments on the

proposal and made changes in response to those comments. The Plan

was adopted by the regional forester in April 1986.

Appellants exhausted their administrative appeals,4

 and now

seek judicial review of the Plan as a final agency action within

the meaning of the Administrative Procedure Act ("APA"), 5 U.S.C.

§ 702 (1994).5 The complaint the appellants presented to the
to the Act, we have jurisdiction over a challenge under the

NFMA only if the agency action is final. 

 6

The "San Juan" decision resolved administrative appeals of

two separate LRMPs, and addressed the justifications needed in a

LRMP when it proposes to expand a timber program in which costs

to the Forest Service will exceed the revenues generated by the

program. See "Decision on Review of Administrative Decision by

the Chief of the Forest Service Related to the Administrative

Appeals of the Forest Plans and EISs for the San Juan National

Forest and the Grand Mesa Uncompahgre, and Gunnison National

Forest" (Dep't Agriculture, July 31, 1985) (described at 53

Fed.Reg. 26621 (1988)). Appellants argue that the application of

the San Juan decision to the Plan should be left to the district

court once we have found that appellants have standing to

challenge the Plan. Appellees contend that the San Juan decision

is not judicially enforceable. We do not address these

assertions, since we hold infra that appellants' challenges to

the Plan are not ripe for judicial review. 

district court alleges that several of the decisions made in the

Plan violate the NFMA and its regulations as follows: (1) the Plan

designates too much land in the Forest as suitable for timber

production; (2) the Plan fails to take into account the

possibility that the costs incurred by the Forest Service will

exceed the revenues the Service receives from the timber companies;

(3) the Plan sets an "arbitrarily high" timber harvest level for

the fifth decade of the Plan; (4) the Plan fails to follow the

directives of the Secretary of Agriculture's "San Juan" decision;6

(5) the Plan makes "arbitrary and capricious" assumptions about

future timber harvest levels and future timber prices; (6) the

Plan fails to provide for animal and plant species diversity as

required by the NFMA; (7) in formulating the Plan, the Service

failed to conduct species inventories as required by the NFMA; and

(8) the Plan fails to protect the Forest's visual resources as
 7

Appellants' complaint consists of thirteen counts; many of

the allegations recited above constitute separate counts. In

addition to these allegations, the complaint asserts that the

regulations promulgated by the Secretary for determining the

forest land's economic suitability for timber production, see 36

C.F.R. § 219.14, violate the NFMA's requirement that the

identification of economically unsuitable lands be based on an

objective standard or rule of reason. See 16 U.S.C. § 1604(k). 

Although the district court did not specifically address

appellants' standing to bring this claim, we read its order as

determining that appellants lack standing to litigate this claim. 

Appellants do not appeal the district court's disposition of this

claim; accordingly, we do not address it. 

required by the NFMA.7

Appellants seek a declaratory judgment that the Plan and the

final environmental impact statement that accompanied the Plan

violate the NFMA in the manner specified above. Assuming that the

Plan and the impact statement are invalid, they ask that the

district court remand the Plan to the Forest Service so that the

Service can comply with the NFMA and its regulations.

After the parties joined issue, both sides moved for summary

judgment. Appellees' motion replicated the assertion contained in

its answer that the environmental groups lack standing to bring the

claims at issue, and, moreover, that such claims are not ripe for

judicial resolution. Appellees' motion alleged alternatively that

the decisions made in the Plan comply with the NFMA and its

regulations.

The district court noted the split of authority in the courts

of appeals on whether claims such as the ones appellants present

are justiciable; that is, whether such claims are ripe for

judicial review, and, if so, whether any person has standing to

bring them. The Seventh and the Ninth Circuits have held the

justiciability requirements to be satisfied in cases similar to the
one here. See Sierra Club v. Marita, 46 F.3d 606 (7th Cir.1995);

Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir.1992).

The Eighth Circuit, however, has found that environmental-group

plaintiffs lacked standing to bring a challenge similar to the one

in this case. See Sierra Club v. Robertson, 28 F.3d 753 (8th

Cir.1994). That court did not address the question whether the

challenge presented was ripe for judicial review.

Finding the reasoning of the Eighth Circuit in Robertson

persuasive, the district court held that the injury alleged by

appellants was not imminent. Thus, appellants could not "have

suffered an "injury in fact'—an invasion of a legally-protected

interest which is (a) concrete and particularized ... and (b)

"actual or imminent, not "conjectural" or "hypothetical." ' "

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130,

2136, 119 L.Ed.2d 351 (1992) (citations omitted). Without such an

injury, the district court held, appellants did not have standing

to pursue their claims.

Because the appellants' injury was not imminent, the court

also held that their claims were not ripe for judicial review.

Further, the court found that dismissal of the action would cause

little or no hardship to appellants. Determining that the

appellants did not have standing to bring their claims, and that

their claims were not ripe, the district court granted the

appellees' motion for summary judgment.

II.

We review the district court's grant of summary judgment de

novo, applying the same legal standards that bound the district
court. See Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374,

1377 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 729,

130 L.Ed.2d 633 (1995). In making this determination, we view all

evidence in the light most favorable to the non-moving party. See

Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir.1992). Summary

judgment is appropriate in cases in which there is no genuine issue

of material fact. See Fed.R.Civ.P. 56(c).

In this case, the district court examined the appellants'

claimed injuries through the lens of the standing doctrine as well

as through the lens of the ripeness doctrine. Few courts draw

meaningful distinctions between the two doctrines; hence, this

aspect of justiciability is one of the most confused areas of the

law. Because we find the framework of the ripeness doctrine more

useful when evaluating injuries that have not yet occurred, such as

those claimed by appellants here, we affirm the district court on

that basis.

 The confusion in the law of standing and ripeness is hardly

surprising. Both doctrines focus initially on the injury to the

person bringing the action. The Supreme Court has stated that the

"injury in fact" prong of standing requires an injury that is both

"concrete and particularized" and "actual or imminent." Defenders

of Wildlife, 504 U.S. at 560, 112 S.Ct. at 2136. Similarly, for

the controversy to be ripe, the complained-of injury must be

immediate or imminently threatened. There is an important

distinction between the two doctrines, however. When determining

standing, a court asks whether these persons are the proper parties

to bring the suit, thus focusing on the qualitative sufficiency of
the injury and whether the complainant has personally suffered the

harm. See Erwin Chemerinsky, Federal Jurisdiction § 2.4.1 (1989).

When determining ripeness, a court asks whether this is the correct

time for the complainant to bring the action. See id. In the

instant case, the timing of the suit, rather than the propriety of

appellants as plaintiffs, causes justiciability problems.

 The ripeness doctrine "prevent[s] the courts, through

avoidance of premature adjudication, from entangling themselves in

abstract disagreements over administrative policies" as well as

"protect[s] the agencies from judicial interference until an

administrative decision has been formalized and its effects felt in

a concrete way by the challenging parties." Abbott Lab. v.

Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681

(1967). A case is not " "ripe' for judicial review under the APA

until the scope of the controversy has been reduced to more

manageable proportions, and its factual components fleshed out, by

some concrete action applying the regulation to the claimant's

situation in a fashion that harms or threatens to harm him." Lujan

v. National Wildlife Fed'n, 497 U.S. 871, 891, 110 S.Ct. 3177,

3190, 111 L.Ed.2d 695 (1990). In deciding whether an issue is

ripe, a court must "evaluate both the fitness of the issues for

judicial decision and the hardship to the parties of withholding

court consideration." Abbott Lab., 387 U.S. at 149, 87 S.Ct. at

1515.

Appellants argue that the decisions made in the Plan are

couched in language that makes mandatory further site-specific

action. Appellees respond that the Plan is not the final arbiter
 8

As the district court stated, "[This] court's determination

that Plaintiffs lack standing at this time to assert their claims

made herein is ipso facto a determination that at such time as

the Plan is implemented in a specific way, it will not be too

late to complain." Wilderness Soc'y v. Alcock, 867 F.Supp. 1026,

1041 (N.D.Ga.1994). 

of any on-the-ground actions. They contend that there is another

level of decisionmaking that determines precisely what

site-specific action will be taken pursuant to the Plan. Thus,

appellees assert, the Plan only sets timber harvest goals and

possible future timber harvest levels; no harvesting will be done

and, therefore, no "injury" can occur, until after the second-stage

decisions are made.

 We are persuaded by appellees' contention that no

site-specific action will be taken pursuant to the Plan without a

second stage of decisionmaking; "subsequent discretionary actions

require separate and independent decisionmaking" before any

site-specific action will occur. National Wildlife Fed'n, 497 U.S.

at 892 n. 3, 110 S.Ct. at 3190 n. 3. Appellees concede that

appellants can challenge both the site-specific action as well as

the Plan-level decision(s) underlying the specific action at the

second stage.8

 Our opinion is dependent on that concession. Until

such actions have been proposed, however, there is no controversy

for us to resolve. We have no doubt that some decisions in the

Plan make an injury to the appellants more likely. "More likely,"

however, does not make the injury imminent enough for purposes of

judicial decisionmaking. We do not yet know when or how an injury

to the appellants will occur, and this factual underpinning is
 9

Appellants assert in their briefs (and maintained at oral

argument) that timber is currently being harvested in the Forest

on lands and in ways that violate the NFMA. Appellants did not,

however, amend their complaint to include challenges to any

site-specific action, and thus, for the purposes of this appeal,

we presume that no site-specific action has occurred. 

vital to a full-fledged judicial review of the Plan.9 Thus, until

a site-specific action has been proposed, appellant's claimed

injury is not ripe for judicial review. See, e.g., Region 8 Forest

Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 808 (11th

Cir.1993) (finding that timber companies do not have standing to

challenge an amendment to a LRMP because the claimed injury would

be affected by future site-specific analyses).

AFFIRMED.