FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE WILDERNESS SOCIETY, INC.; 

AMERICAN WILDLANDS; PACIFIC

RIVERS COUNCIL,

No. 06-35565 Plaintiffs-Appellees,

D.C. No.

v.  CV-03-00119-DWM

MARK REY; ANN VENEMAN; DALE OPINION BOSWORTH, Chief, United States

Forest Service,

Defendants-Appellants. 

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

June 9, 2010—Portland, Oregon

Filed September 22, 2010

Before: Cynthia Holcomb Hall, David R. Thompson, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

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COUNSEL

John C. Cruden, Acting Assistant Attorney General, Washington, D.C., for the appellants.

Leslie Lagomarcino, U.S. Department of Agriculture Office

of General Counsel, Washington, DC, for the appellants.

David C. Shilton, Barclay T. Samford (argued), and Katherine

W. Hazard, U.S. Dept. of Justice, Washington, D.C., for the

appellants. 

Timothy J. Preso (argued), Bozeman, Montana, for the appellees.

OPINION

McKEOWN, Circuit Judge:

The Forest Service Decisionmaking and Appeals Reform

Act (“ARA”), requires the Secretary of Agriculture to establish notice and comment procedures through the Chief of the

United States Forest Service for proposed decisions related to

“projects and activities implementing land and resource management plans.” Pub. L. No. 102-381, § 322, 106 Stat. 1419

(1992) (codified as 16 U.S.C. § 1612 note). The Act also

requires the Secretary to modify the appeals procedure for

decisions concerning these projects. Id. In 2003, the Forest

Service revised the regulations implementing the ARA to significantly limit the scope and availability of notice, comment,

and appeals procedures. In response, several environmental

groups, The Wilderness Society, American Wildlands, and

Pacific Rivers Council (together “TWS”), asserted facial challenges against three sections of the revised regulations, alleging that they are inconsistent with the ARA. The district court

agreed and granted TWS declaratory and injunctive relief.

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Given intervening case law, we dismiss TWS’s claims as nonjusticiable.

BACKGROUND

The National Forest Management Act of 1976 directs the

Forest Service to develop “land and resource management

plans for units of the National Forest System.” 16 U.S.C.

§ 1604(a). Before 1992, although it was not statutorily

required, the Forest Service provided a post-decisional

appeals process for certain decisions related to these plans.

Ultimately, the Forest Service discontinued the process

because it was too costly to maintain. In 1992, partly as a

result of negative public reaction to the cancellation, Congress

enacted the ARA. The Forest Service then adopted regulations implementing the legislation. 

In 2003, the Forest Service issued revised regulations. One

month later, TWS challenged three sections of the revised

regulations claiming that the provisions impermissibly limit

the scope of notice, comment, and appeals. Because the ARA

mandates the unqualified application of notice, comment, and

appeals procedures to “projects and activities implementing

land and resource management plans,” ARA § 322(a), TWS

contends that the regulations are at odds with the statute.

Section 215.20(b) of the regulations exempts decisions of

the Secretary and Under Secretary (together “the Secretary”)

from notice, comment, and appeals requirements:

Decisions of the Secretary of Agriculture or Under

Secretary, Natural Resources and Environment are

not subject to the notice, comment, and appeal procedures set forth in this part. A decision by the Secretary or Under Secretary constitutes the final

administrative determination of the Department of

Agriculture.

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36 C.F.R. § 215.20(b). 

Section 215.13(a) limits the right of appeal to those who

have submitted substantive comments:

Individuals and organizations who submit substantive written or oral comments during the 30-day

comment period for an environmental assessment, or

45-day comment period for a draft environmental

impact statement (§ 215.6, 40 CFR 1506.10; FSH

1909.15, Chapter 20), except as provided for in paragraph (c) of this section, may file an appeal.

36 C.F.R. § 215.13(a).

Finally, § 215.12(f) exempts from appeal those projects that

the Forest Service finds not to have a significant effect on the

environment and that are thus categorically excluded from

certain National Environment Policy Act (“NEPA”) requirements:

The following decisions and actions are not subject

to appeal under this part . . . : (f) Decisions for

actions that have been categorically excluded from

documentation in an [environmental assessment] or

[environmental impact statement] pursuant to FSH

1909.15, Chapter 30, section 31.

36 C.F.R. § 215.12(f).

In 2006, the district court declared all three of these regulatory provisions invalid. However, because TWS had not

alleged a waiver of sovereign immunity in its complaint, the

district court concluded it could not impose a remedy. The

court allowed TWS time to amend its complaint.

In an unrelated action—while this case was proceeding in

the district court in Montana—a district judge in the Eastern

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District of California granted nationwide injunctive relief with

respect to §§ 215.20(b) and 215.12(f) of the 2003 regulations.

Earth Island Inst. v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal.

2005). In view of this decision, TWS amended its complaint

to request merely declaratory relief with respect to those two

regulations. The claim for a nationwide injunction with

respect to § 215.13(a) remained unchanged. TWS also

amended its complaint to allege a waiver of sovereign immunity under the Administrative Procedure Act.

The district court granted TWS’s motion for summary

judgment and declared §§ 215.20(b) and 215.12(f) invalid. It

imposed a nationwide injunction prohibiting the Forest Service from acting under § 215.13(a).

ANALYSIS

On appeal, the Forest Service argues that intervening Ninth

Circuit and Supreme Court case law, stemming from Pengilly,

renders the case non-justiciable. We consider de novo the

question of standing. See Nevada Land Action Ass’n v. United

States Forest Serv., 8 F.3d 713, 715 (9th Cir. 1993). 

I. INTERVENING CASE LAW

In Earth Island Institute v. Ruthenbeck, the Forest Service

challenged the district court’s ruling in Pengilly on both

standing and ripeness grounds. 490 F.3d 687 (9th Cir. 2007).

We held that while plaintiffs had standing to pursue their

claims, only two of the provisions, 36 C.F.R. §§ 215.4(a) and

215.12(f), were ripe for review. Earth Island specifically mentioned only one project in its complaint, and only the latter

two provisions were applicable in the context of that project.

Ruthenbeck, 490 F.3d at 696. 

[1] The Supreme Court did not reach the ripeness question.

Instead, it held that none of Earth Island’s claims were justiciable because plaintiffs lacked standing: 

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To seek injunctive relief, a plaintiff must show that

he is under threat of suffering “injury in fact” that is

concrete and particularized; the threat must be actual

and imminent, not conjectural or hypothetical; it

must be fairly traceable to the challenged action of

the defendant; and it must be likely that a favorable

judicial decision will prevent or redress the injury. 

Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149

(2009) (citation omitted). The Court reiterated that where the

regulations being challenged do not require or forbid any

action on the part of the respondents, standing is substantially

more difficult to establish. Id. Earth Island lacked standing to

challenge §§ 215.4(a) and 215.12(f), because it failed to identify an “application of the invalidated regulation that threaten[ed] imminent and concrete harm to the interests of [its]

members.” Id. at 1150.

[2] The Court elaborated that neither the vague desire to

use the forest land in the future, nor the procedural harm, “in

vacuo,” of being denied the right to comment on Forest Service actions, was sufficient to confer Article III standing. Id.

at 1150-51. As the Court explained, “ ‘[s]uch ‘some day’

intentions—without any description of concrete plans, or

indeed any specification of when the some day will be’ ”—do

not support standing. Id. at 1151 (quoting Lujan v. Defenders

of Wildlife, 504 U.S. 555, 564 (1992)). Earth Island’s claim

of standing was insufficient because it was “not tied to application of the challenged regulations, because it [did] not identify any particular site, and because it relate[d] to past injury

rather than imminent future injury that is sought to be

enjoined.” Id. at 1150. 

II. STANDING

The district court rejected the Forest Service’s challenge to

TWS’s standing, reasoning that “[b]ecause the ARA’s purpose is to establish notice and comment and appeals proceWILDERNESS SOCIETY v. REY 16103
dures, deprivation of the procedures injures the Plaintiffs in a

sense contemplated by Congress.” In addition to this procedural injury, the district court found that TWS had standing

because it suffered an “informational injury” in being denied

notice of Forest Service actions. The nature of the informational injury, according to the court, was that TWS “would

not know that action [wa]s being considered until it [wa]s too

late and irreversible action as [sic] already been taken.”

On appeal, the Forest Service renews its challenge to

TWS’s standing.1 It argues that Summers undermines TWS’s

alleged procedural injury given the Court’s holding that “deprivation of a procedural right without some concrete interest

that is affected by the deprivation—a procedural right in

vacuo—is insufficient to create Article III standing.” Summers, 129 S. Ct. at 1151. The Forest Service also argues that

because it does not challenge the district court’s ruling on the

notice and comment portions of § 215.20(b), any informational injury previously suffered has been remedied. 

Recognizing the hurdle posed by Summers, TWS now

argues that it has standing with respect to § 215.12(f) because

that challenge is specifically tied to a location and to a particular project, and because one of its members suffered an aesthetic or recreational injury-in-fact. Although its challenges to

§§ 215.20(b) and 215.13(a) are not tied to a particular project

or application, TWS contends that Summers is not controlling

with respect to its claim of “informational injury,” because the

Court did not address that issue in its decision. 

TWS also broadens its alleged injury to include not simply

the informational deprivation caused by the loss of notice and

comment, but also the informational deprivation resulting

from its inability to participate in the “appeal-and-decision

1Although TWS is the appellee in this case, it nonetheless bears the burden of establishing standing for each type of relief sought. See Summers,

129 S. Ct. at 1149. 

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process.” If an informational injury of this sort is indeed cognizable, TWS would defeat the Forest Service’s standing

challenge with respect to all three regulations. We address the

standing arguments in turn. 

A. AESTHETIC AND RECREATIONAL INJURY-IN-FACT

In response to the Forest Service’s renewed standing challenge, TWS now asserts that it has associational standing to

challenge § 215.12(f) by virtue of member Michael Anderson’s recreational and aesthetic injuries. This argument stems

from the Supreme Court’s discussion of standing in Friends

of the Earth, Inc. v. Laidlaw Environmental Services (TOC),

Inc.: 

An association has standing to bring suit on behalf

of its members when its members would otherwise

have standing to sue in their own right, the interests

at stake are germane to the organization’s purpose,

and neither the claim asserted nor the relief

requested requires the participation of individual

members in the lawsuit. 

528 U.S. 167, 181 (2000). 

Anderson submitted a declaration in June 2004 stating that

he had extensively used Oregon’s Umpqua National Forest in

the past. Later in the declaration he testified that the Ash

Creek Fire Salvage Project (“Ash Creek Project”) in the Umpqua Forest injured TWS’s interest in “protecting and restoring

the ecological integrity of national forest lands.” Anderson

went on to note that under the prior regulations, the project

would have been subject to appeal and TWS would have had

the opportunity to lessen or eliminate this injury.

[3] TWS is correct that Summers did not eliminate the

notion of aesthetic and recreational injury. Summers, 129 S.

Ct. at 1149. To sustain standing on this basis, it would be sufWILDERNESS SOCIETY v. REY 16105
ficient to show that Anderson had repeatedly visited an area

affected by a project, that he had concrete plans to do so

again, and that his recreational or aesthetic interests would be

harmed if the project went forward without his having the

opportunity to appeal. Id. Where the recreational use of a particular area has been extensive and in close proximity to the

plaintiff, we have held that an affiant’s expressed intention to

continue using the land is sufficiently concrete to underwrite

an injury-in-fact. See White Tanks Concerned Citizens, Inc. v.

Strock, 563 F.3d 1033, 1039 (9th Cir. 2009). Nonetheless, a

vague desire to return to the area “without any description of

concrete plans, or indeed any specification of when the some

day will be” does not support a finding of actual or imminent

injury. Summers, 129 S. Ct. at 1151. 

[4] Anderson demonstrates extensive past use of the Umpqua National Forest. Although he does not offer any testimony as to when he might return, we do not discount the fact

that he authored a hiking book about the area and says he

wants to continue going there with his family in the future. On

the other hand, Anderson authored the hiking book more than

thirty years ago, and he expresses his general intention to

return not just to the Umpqua National Forest but to several

national forests in both Oregon and Washington state. This

“some day” general intention to return to the national forests

of two geographically large states is too vague to confer

standing because Anderson has not shown that he is likely to

encounter an affected area of the Umpqua National Forest in

his future visits. See Defenders of Wildlife, 504 U.S. at 565.

[5] Relatedly, the Court in Summers explained that to find

standing based on an affidavit, a court must assume not only

that the affiant would use a particular tract of land in the

future, “but also that the tract is about to be developed by the

Forest Service in a way that harms [plaintiff ’s] recreational

interests.” Summers, 129 S. Ct. at 1150. Past injury is not sufficient to confer standing. Id. There must be an “imminent

future injury that is sought to be enjoined.” Id.

16106 WILDERNESS SOCIETY v. REY
[6] While it is true that Anderson alleges an injury connected to a particular project located in the Umpqua National

Forest (the Ash Creek Project), the alleged injury from the

Ash Creek Project is not connected to Anderson’s recreational

or aesthetic interest in enjoying that particular forest in the

future. Anderson does not allege that his future enjoyment is

in any way threatened by the Ash Creek Project. He testified,

rather, that TWS’s interest in protecting and restoring the ecological integrity of national forest lands, generally, is threatened by the project. There is no indication that the Ash Creek

Project would affect the particular area of the Umpqua Forest

that Anderson plans to use in the future, or that it would otherwise impact his personal recreational or aesthetic interests

in the land. The lack of any linkage between the project and

the claimed injury undermines the effort to establish standing.

Compounding the problem is the matter of timing. TWS

filed its complaint in July 2003. The Ash Creek Project was

not approved until July 2004. At the time the complaint was

filed, § 215.12(f) had no relevance to the project because the

Forest Service had classified it as not falling under the NEPA

categorical exclusion. Thus, pursuant to NEPA, a Notice of

Intent for an Environmental Impact Statement was posted in

March 2003, and public meetings were held as late as July 24,

2003. It was not until November 19, 2003 that interested parties were informed that the project would fall into a categorical exclusion under NEPA, thus exempting it from the appeals

process under § 215.12(f). “The existence of federal jurisdiction ordinarily depends on the facts as they exist when the

complaint is filed.” Newman-Green, Inc. v. Alfonzo-Larrain,

490 U.S. 826, 830 (1989). In July 2003, the record facts about

the Ash Creek Project could not confer standing on TWS. 

[7] We conclude that Anderson’s passing reference to the

Ash Creek Project is not central to TWS’s claim. It was not

relevant to § 215.12(f) at the time the complaint was filed and

it did not represent a future, imminent harm sought to be

enjoined. Even if Anderson’s intention to return to Umpqua

WILDERNESS SOCIETY v. REY 16107
National Forest was sufficiently specific, which we doubt, he

did not allege that the Ash Creek Project itself, or its results,

affected or would affect his aesthetic or recreational interests

in the land he intended to use in the future. In short, as in

Summers, the declaration is deficient and insufficient to support standing.2

B. INFORMATIONAL INJURY

In its standing analysis, the district court confirmed both

procedural and informational injury. Although it acknowledged that procedural injury is “sufficient for standing only in

limited circumstances,” the court held that in this case,

because the ARA created the specific right to notice, comment, and appeals procedures, “deprivation of th[ose] procedures injur[ed TWS] in a sense contemplated by Congress.”

The court explained further that the injury in question was:

sufficiently concrete and particularized because the

harm [was] the loss of the opportunity to comment

and appeal, not the specific impact or lack thereof of

the Plaintiffs’ comments. Plaintiffs need not assert

that any specific injury will occur in any specific

national forest that their members visit. 

This finding cannot be squared with the Supreme Court’s

analysis in Summers. The Court expressly held that deprivation of procedural rights, alone, cannot confer Article III

standing. See Summers, 129 S. Ct. at 1151. TWS concedes

this point on appeal. It points instead to the district court’s

finding that it suffered informational injury resulting from

2The irony of this result is that following Summers, TWS and Anderson

have known that this single declaration was the centerpiece of their claim

to aesthetic and recreational standing. At oral argument, TWS’s counsel

acknowledged that an amended declaration or a new declaration in a

follow-on suit might well remedy any deficiency. 

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“the violation of the obligation to provide notice.” It now

broadens this allegation to include not just informational

injury under the exemption from the notice requirement of

§ 215.20(b), but informational injury embodied in all three

provisions’ deprivation of its right to appeal. 

[8] As a preliminary matter, the Forest Service urges us to

reject any standing argument based on the § 215.20(b) exemption from notice and comment requirements because it

decided not to appeal the district court’s ruling with respect

that provision. One problem with this tactic is that the notice,

comment, and appeal rights come as a package. The right to

appeal a Forest Service decision is of little value if one never

receives notice of that decision in the first place. In the end,

however, the Forest Service’s characterization of the appeal

has no bearing on the matter. While Summers does not

expressly discuss informational injury, the Court’s discussion

of procedural injury casts serious doubt on the applicability of

informational injury here. We are not convinced that the doctrine of informational injury can be applied to the statutory

framework of the ARA, regardless of the specific provision.

The notion of an informational injury serving as an injuryin-fact sufficient for standing can be traced to Federal Elections Commission v. Akins, 524 U.S. 11 (1998). In that case,

a group of voters challenged the Federal Election Commission’s refusal to treat the American Israel Public Affairs Committee as a “political committee,” thus requiring disclosure of

certain information about campaign-related activities under

the Federal Election Campaign Act. Akins, 524 U.S. at 15-16.

The Court held that the voters had suffered an injury sufficiently concrete and particularized to give them standing in

that they were denied information that the Federal Election

Campaign Act of 1971 required be made public. Id. at 21.

Although this informational injury was quite general and

widely shared, because “the informational injury at issue

[was] directly related to voting, the most basic of political

rights, [it wa]s sufficiently concrete and specific such that the

WILDERNESS SOCIETY v. REY 16109
fact that it [wa]s widely shared [did] not deprive Congress of

constitutional power to authorize its vindication in the federal

courts.” Id. at 24-25. 

Courts have found similar statutory rights to information—

the deprivation of which can give rise to concrete injury sufficient for the purposes of Article III standing—under the Freedom of Information Act (“FOIA”), Pub. Citizen v. United

States Dep’t of Justice, 491 U.S. 440, 449 (1989); the Fair

Housing Act, Havens Realty Corp. v. Coleman, 455 U.S. 363,

374 (1982); the Clean Water Act, American Canoe Ass’n, Inc.

v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 542

(6th Cir. 2004); and the Federal Advisory Committee Act

(“FACA”), Cummock v. Gore, 180 F.3d 282, 290-93 (D.C.

Cir. 1999). 

According to TWS, the ARA also confers a statutory right

to information because it provides that “the Secretary shall

give notice of proposed actions of the Forest Service concerning projects and activities implementing land and resource

management plans for the National Forest System.” This

information would have assisted TWS “in furthering [its]

goals of forest conservation, and in educating [its] members

and the public in general about environmentally harmful Forest Service projects.” TWS also argues that it was denied

information, not otherwise available, by the provisions eliminating its right to appeal. The right to appeal “provides the

public with substantial information about National Forest

projects that would not otherwise be available.” 

[9] To ground a claim to standing on an informational

injury, the ARA must grant a right to information capable of

supporting a lawsuit. See generally Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and

Beyond, 147 U. PA. L. REV. 613, 642-43 (1999) (concluding

that the “principal question after Akins, for purposes of ‘injury

in fact,’ is whether Congress or any other source of law gives

the litigant a right to bring suit”). Notice, of course, is a form

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of information (information that certain projects are being

proposed), however Congress’s purpose in mandating notice

in the context of the ARA was not to disclose information, but

rather to allow the public opportunity to comment on the proposals. Notice is provided as a predicate for public comment.

Similarly, although an appeal might result in the dissemination of otherwise unavailable information, the statute does not

contemplate appeals for this purpose, but to allow the public

an opportunity to challenge proposals with which they disagree. In other words, the ARA grants the public a right to

process and to participation. Even though these rights necessarily involve the dissemination of information, they are not

thereby tantamount to a right to information per se. 

[10] The Seventh Circuit’s treatment of informational

injury and the ARA is instructive. In Bensman v. United

States Forest Service, the court declined to find an explicit

right to information in the text of the ARA, explaining that:

The ARA’s history indicates that Congress intended

the statute to restore the citizen participation that

existed prior to the Service’s proposed 1992 rule

changes. In introducing the bill, Senator Fowler criticized the Service’s proposal to modify “85 years” of

public participation in Service decisions, and hailed

the ARA as a way to open “a systematic channel for

public participation . . . as well as maintaining an

appeal system of review.” 138 Cong. Rec. S11,643

(daily ed. Aug. 6, 1992) (statement of Sen. Fowler).

He also noted that the appeals process “is simply a

chance for a citizen’s views, a taxpayer’s views

about his own forest” to be heard. Id.

By way of contrast, for example, FOIA’s goal is “to

serve the ‘basic purpose of ensuring an informed citizenry, vital to the functioning of a democratic society.’ ” Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122,

1123 (7th Cir. 2003) (quoting Solar Sources, Inc. v.

WILDERNESS SOCIETY v. REY 16111
United States, 142 F.3d 1033, 1037 (7th Cir. 1998)).

Similarly, Congress intended the explicit reporting

and informational requirements in FACA to control

advisory committees and to allow public scrutiny of

the advice provided to the Executive Branch by private individuals. See Cummock, 180 F.3d at 284-85.

In short, statutes like FOIA and FACA that have

served as the basis for informational standing have

a goal of providing information to the public; the

ARA’s goal is simply to increase public participation

in the decision-making process. The difference in

purposes seems to belie [the] claim that the ARA

provides a right to information.

408 F.3d 945, 958 (7th Cir. 2005). 

[11] We agree with the Seventh Circuit’s analysis.

Although Bensman did not discuss informational injury in

connection with the notice requirement (as opposed to the

appeal requirement), the analysis with respect to Congress’s

intention in enacting the ARA is equally applicable. Indeed,

it is borne out by the Supreme Court’s discussion of procedural standing in Summers. See Summers, 129 S. Ct. at 1151.

There, the Court said that procedural injury, standing on its

own, cannot serve as an injury-in-fact. A concrete and particular project must be connected to the procedural loss. Id.

TWS urges us to recognize an informational injury as a result

of a procedural deprivation. It asks us, in effect, to modify the

Supreme Court’s mandate such that procedural deprivations

cannot be injuries-in-fact unless they are tied to particular

projects or unless they result in an informational harm. The

difficulty with TWS’s analysis is that it simply reframes every

procedural deprivation in terms of informational loss. This

approach would allow an end run around the Supreme Court’s

procedural injury doctrine and render its direction in Summers

meaningless. We decline to apply the theory of informational

injury in the context of the procedural rights encompassed by

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the ARA. 

DISMISSED. 

WILDERNESS SOCIETY v. REY 16113