The Progressive


A project of Common Dreams

For Immediate Release
Contact: Phone: (202) 588-1000

Supreme Court to Decide Whether Citizens Can Effectively Challenge Illegal Government Rules

Administration Seeks to Shield Logging, Drilling and Off-Road Vehicle Use on Forest Service Lands from Public Review


The U.S. Supreme Court is set to
decide whether the public can effectively challenge illegal government
regulations and, in the process, will decide whether citizens have a
voice in the management of national forests.

On Oct. 8, the high court will hear
a case that started out as an important challenge to the Bush
administration's weakening of the public's right to weigh in on major
decisions impacting our national forests. The case began when
conservation groups successfully challenged federal regulations issued
in 2003 that eliminated the public's ability to comment on and appeal
U.S. Forest Service actions such as commercial timber sales, oil and
gas development and off-road motorized vehicle use. The victory has
been upheld on appeal and the administration's request for a rehearing
was denied.

However, the U.S. Supreme Court
granted the government's request to review the case - not on whether
the limitations on public participation were permissible, but on a much
larger issue that could make it virtually impossible for citizens to
effectively challenge any regulation (not just environmental) issued by
a federal agency. The Bush administration is arguing that the courts
generally lack authority to hear cases brought by public interest or
citizens' groups that challenge federal regulations, and that even if a
court can hear such a case, it can't set aside a regulation nationwide,
but only within its local jurisdiction.

"Right now, timber and mining companies are calling all
the shots. Average citizens deserve a voice in how their forests are
managed and how their tax dollars are spent," said Sierra Club
representative Aaron Isherwood. "By creating financial and logistical
hurdles, the Bush administration is silencing citizens."

"The government knows that the
public interest community's resources are limited, and that its
position would allow unlawful government action - whether a timber sale
or deprivation of personal rights - to go unchecked in most instances,"
stated lead attorney Matt Kenna from the Western Environmental Law
Center. "Citizens must obey the law; there is no reason why
governments should be allowed to continue violating the law once their
actions are found to be unlawful." Kenna will present the case to the
Supreme Court.

The case, Summers v. Earth Island Institute,
has garnered significant interest. State government, academic and
public interest groups have filed amicus briefs siding with
conservation groups. The timber and building industries have filed
amicus briefs joining the government's argument that a nationwide
set-aside of an illegal regulation should be available only to
plaintiffs with an economic interest at stake.

"Obviously, that is a nonsensical
and self-serving position," stated Jim Bensman of Heartwood. "This
case is about whether or not the public has a right to be involved in
the most important decisions that affect our public lands. The number
one priority for the Bush administration has been to reduce public
accountability, and this has been especially true when it comes to
logging on our National Forests."

"Limiting justice to those who profit off our National
Forests is against everything this country stands for," said Ara
Marderosian of the Sequoia ForestKeeper. "One of the oldest rights
recognized by our courts is the public's right to protect its natural
resources - which are owned by all - not just those who would earn a
buck destroying them."

If the government prevails in this
case, the lower court ruling would be set aside, breathing new life
into the Bush administration's regulations that eliminated the public's
ability to comment on and appeal major U.S. Forest Service actions such
as commercial timber sales, oil and gas development and off-road
motorized vehicle use.

As stated by Marc Fink, an attorney
with the Center for Biological Diversity: "This case is the latest
attempt by the Bush administration to limit public involvement and
close the courthouse door to those harmed by bad Forest Service

" Public Citizen is assisting in this case because it
could have an enormous impact not only in environmental cases, but also
in public interest litigation generally," Public Citizen attorney Scott
Nelson said. "If the Court were to side with the government, it would
significantly impair the ability of public interest organizations and
ordinary citizens to hold government agencies accountable when they
issue rules that are unlawful."

Attorney Matt Kenna of the
Western Environmental Law Center is presenting the case on behalf of
Heartwood, Sierra Club, Center for Biological Diversity, Sequoia
ForestKeeper and Earth Island Institute, along with attorney Scott
Nelson of Public Citizen.

Background (For extensive case history, visit

The Bush administration
unsuccessfully tried to create a backlash against conservationists and
the original ruling by holding up permits for minor activities such as
nut-gathering, mushroom-picking and hunting expeditions for people with disabilities, blaming
it on the ruling. The administration even went so far as to say the
ruling would prevent the cutting of the Capitol Christmas Tree. As
noted in a 2005 Washington Post editorial, after the judge made
clear that the Forest Service was again acting illegally, this case
"should lead to more questions about the real motives of the agency
that allegedly protects the nation's forests." (The Washington Post, Forest Service Sulk, editorial, 10/24/05)

Organizations Involved

The Center for Biological Diversityis
a national nonprofit conservation organization with more than 180,000
members and online activists dedicated to the protection of endangered
species and wild places.

a network of grassroots organizations and individuals dedicated to the
preservation of forest ecosystems and biological diversity in the
eastern United States.

Public Citizen is a national, nonprofit consumer
advocacy organization based in Washington, D.C. For more information,
please visit Through its Litigation Group and the Alan Morrison Supreme Court Assistance Project,
Public Citizen provides aid to individuals and public interest groups
litigating before the Supreme Court of the United States.

Sequoia ForestKeeperis
a nonprofit conservation organization with world-wide membership and
on-the-ground activists dedicated to protecting Sequoia National
Forest, where this case originated.

Founded by John Muir in 1892, Sierra Clubis
the nation's oldest and largest grassroots environmental organization.
The Sierra Club's mission is to explore, enjoy and protect the planet.

The Western Environmental Law Centeris
a nonprofit public interest law firm that works to protect and restore
western wildlands and advocates for a healthy environment on behalf of
communities throughout the West.

Public Citizen is a nonprofit consumer advocacy organization that champions the public interest in the halls of power. We defend democracy, resist corporate power and work to ensure that government works for the people - not for big corporations. Founded in 1971, we now have 500,000 members and supporters throughout the country.

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