Kent /Emmanuel
Below are the results using the PLY parser and Regex versions on the attached
'sierra' data which I think covers the common formats. Here are some 'fully
unparsed" citations that were missed by the programs:
Smith v. Wisconsin Dept. of Agriculture, 23 F.3d 1134, 1141 (7th Cir.1994)
Indemnified Capital Investments, S.A. v. R.J. O'Brien & Assoc., Inc., 12 F.3d
1406, 1409 (7th Cir.1993).
Hunt v. Washington Apple Advertising Commn., 432 U.S. 333, 343, 97 S.Ct. 2434,
2441, 53 L.Ed.2d 383 (1977)
Idaho Conservation League v. Mumma, 956 F.2d 1508, 1517-18 (9th Cir.1992)
HTH
Dinesh
--------------------------------------------------------------------------------
PLY PARSER VERSION RESULTS:
Warth v. Seldin, 422 U.S. 490 (1975)
Warth v. Seldin, 499 n. 10 (1975)
Warth v. Seldin, 95 S.Ct. 2197 (1975)
Warth v. Seldin, 2205 n. 10 (1975)
Warth v. Seldin, 45 L.Ed.2d 343 (1975)
Sierra Club v. Morton, 405 U.S. 727, 734 (1972)
Sierra Club v. Morton, 734, 1366 (1972)
Sierra Club v. Morton, 1366 (1972)
Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)
Pennsylvania v. West Virginia, 593, 663 (1923)
Pennsylvania v. West Virginia, 663 (1923)
Oregon Natural Resources Council v. Lowe, 836 F.Supp. 727, 732 (D.Or.1993)
Morris v. Myers, 845 F.Supp. 750, 754 (D.Or.1993)
Women Voters v. United States Nuclear Regulatory Comm, 679 F.2d 1218, 1221 (7th
Cir.1982)
REGEX VERSION RESULTS:
Warth v. Seldin 422 U.S. 490 (1975) ("The standing question thus bears close
affinity to questions of ripeness--whether the harm asserted has matured
sufficiently to warrant judicial intervention...."); Gene R. Nichol, Jr.,
Ripeness and the Constitution, 54 U.Chi.L.Rev. 153, 155, 172-73 (1987) (noting
that "the ripeness requirement is often indistinguishable from actionability
analysis" and that no "line of demarcation" can be drawn between the Supreme
Court's analysis in standing cases where "threatened or actual injury" is at
issue and ripeness cases where the focus is on "direct and immediate harm").
Nonetheless, we will address standing and ripeness separately, reviewing the
district court's decision on both points de novo. See Indemnified Capital
Investments, S.A. v. R.J. O'Brien & Assoc., Inc., 12 F.3d 1406, 1409 (7th
Cir.1993)
Warth v. Seldin 499 n. 10 (1975) ("The standing question thus bears close
affinity to questions of ripeness--whether the harm asserted has matured
sufficiently to warrant judicial intervention...."); Gene R. Nichol, Jr.,
Ripeness and the Constitution, 54 U.Chi.L.Rev. 153, 155, 172-73 (1987) (noting
that "the ripeness requirement is often indistinguishable from actionability
analysis" and that no "line of demarcation" can be drawn between the Supreme
Court's analysis in standing cases where "threatened or actual injury" is at
issue and ripeness cases where the focus is on "direct and immediate harm").
Nonetheless, we will address standing and ripeness separately, reviewing the
district court's decision on both points de novo. See Indemnified Capital
Investments, S.A. v. R.J. O'Brien & Assoc., Inc., 12 F.3d 1406, 1409 (7th
Cir.1993)
Warth v. Seldin 95 S.Ct. 2197 (1975) ("The standing question thus bears close
affinity to questions of ripeness--whether the harm asserted has matured
sufficiently to warrant judicial intervention...."); Gene R. Nichol, Jr.,
Ripeness and the Constitution, 54 U.Chi.L.Rev. 153, 155, 172-73 (1987) (noting
that "the ripeness requirement is often indistinguishable from actionability
analysis" and that no "line of demarcation" can be drawn between the Supreme
Court's analysis in standing cases where "threatened or actual injury" is at
issue and ripeness cases where the focus is on "direct and immediate harm").
Nonetheless, we will address standing and ripeness separately, reviewing the
district court's decision on both points de novo. See Indemnified Capital
Investments, S.A. v. R.J. O'Brien & Assoc., Inc., 12 F.3d 1406, 1409 (7th
Cir.1993)
Warth v. Seldin 2205 n. 10 (1975) ("The standing question thus bears close
affinity to questions of ripeness--whether the harm asserted has matured
sufficiently to warrant judicial intervention...."); Gene R. Nichol, Jr.,
Ripeness and the Constitution, 54 U.Chi.L.Rev. 153, 155, 172-73 (1987) (noting
that "the ripeness requirement is often indistinguishable from actionability
analysis" and that no "line of demarcation" can be drawn between the Supreme
Court's analysis in standing cases where "threatened or actual injury" is at
issue and ripeness cases where the focus is on "direct and immediate harm").
Nonetheless, we will address standing and ripeness separately, reviewing the
district court's decision on both points de novo. See Indemnified Capital
Investments, S.A. v. R.J. O'Brien & Assoc., Inc., 12 F.3d 1406, 1409 (7th
Cir.1993)
Warth v. Seldin 45 L.Ed.2d 343 (1975) ("The standing question thus bears
close affinity to questions of ripeness--whether the harm asserted has matured
sufficiently to warrant judicial intervention...."); Gene R. Nichol, Jr.,
Ripeness and the Constitution, 54 U.Chi.L.Rev. 153, 155, 172-73 (1987) (noting
that "the ripeness requirement is often indistinguishable from actionability
analysis" and that no "line of demarcation" can be drawn between the Supreme
Court's analysis in standing cases where "threatened or actual injury" is at
issue and ripeness cases where the focus is on "direct and immediate harm").
Nonetheless, we will address standing and ripeness separately, reviewing the
district court's decision on both points de novo. See Indemnified Capital
Investments, S.A. v. R.J. O'Brien & Assoc., Inc., 12 F.3d 1406, 1409 (7th
Cir.1993)
Lujan v. Defenders of Wildlife --- U.S. ---- (1992)
Lujan v. Defenders of Wildlife ---- (1992)
Lujan v. Defenders of Wildlife 112 S.Ct. 2130 (1992)
Lujan v. Defenders of Wildlife 2136 (1992)
Lujan v. Defenders of Wildlife 119 L.Ed.2d 351 (1992)
Sierra Club v. Morton 405 U.S. 727 (1972)
Sierra Club v. Morton 734 (1972)
Sierra Club v. Morton 92 S.Ct. 1361 (1972)
Sierra Club v. Morton 1366 (1972)
Sierra Club v. Morton 31 L.Ed.2d 636 (1972)
Whitmore v. Arkansas 495 U.S. 149 (1990)
Whitmore v. Arkansas 158 (1990)
Whitmore v. Arkansas 110 S.Ct. 1717 (1990)
Whitmore v. Arkansas 1724-25 (1990)
Whitmore v. Arkansas 109 L.Ed.2d 135 (1990)
Pennsylvania v. West Virginia 262 U.S. 553 (1923)
Pennsylvania v. West Virginia 593 (1923)
Pennsylvania v. West Virginia 43 S.Ct. 658 (1923)
Pennsylvania v. West Virginia 663 (1923)
Pennsylvania v. West Virginia 67 L.Ed. 1117 (1923)
Oregon Natural Resources Council v. Lowe 836 F.Supp. 727 (D.Or.1993)
Oregon Natural Resources Council v. Lowe 732 (D.Or.1993)
Morris v. Myers 845 F.Supp. 750 (D.Or.1993)
Morris v. Myers 754 (D.Or.1993)
The National Forest Management Act ("NFMA") requires the Secretary of
Agriculture, who is responsible for the Forest Service, to develop "land and
resource management plans" to guide the maintenance and use of resources within
national forests. 16 U.S.C. Secs. 1601-1604. In developing these plans the
Secretary must determine the environmental impact these plans will have and
discuss alternative plans, pursuant to the National Environmental Policy Act
("NEPA"), 42 U.S.C. Sec. 4321 et seq. The Secretary must also consider the
"multiple use and sustained yield of the several products and services
obtained" from the forests, pursuant to the Multiple-Use Sustained Yield Act
("MUSYA"), 16 U.S.C. Secs. 528-531.
The process for developing plans is quite elaborate. The Service must develop
its management plans in conjunction with coordinated planning by a
specially-designated interdisciplinary team, extensive public participation and
comment, and related efforts of other federal agencies, state and local
governments, and Indian tribes. 36 C.F.R. Secs. 219.4-219.7. Directors at all
levels of the Service participate in the planning process for a given national
forest. The Forest Supervisor, who is responsible for one particular forest,
initially appoints and then supervises the interdisciplinary team in order to
help develop a plan and coordinate public participation. The Supervisor and
team then develop a draft plan and draft environmental impact statement
("EIS"), which is presented to the public for comment. 36 C.F.R. Secs.
219.10(a), 219.10(b). After a period of comment and revision, a final plan and
final EIS are sent to the Regional Forester, who directs one of four national
forest regions, for review. If the Regional Forester approves them, she issues
both along with a Record of Decision ("ROD") explaining her reasoning. 36
C.F.R. Sec. 219.10(c). An approved plan and final EIS may be appealed to the
Forest Service Chief ("Chief") as a final administrative decision. 36 C.F.R.
Secs. 219.10(d), 211.18.
In the late 1970s and early 1980s, the Nicolet and Chequamegon Forest
Supervisors and interdisciplinary teams each began drafting a forest management
plan for their respective forests. These plans were expected to guide forest
management for ten to fifteen years beginning in 1986. Drafts of the Nicolet
plan and an EIS comparing the proposed plan to several alternatives were issued
on November 9, 1984, while similar drafts of the Chequamegon plan were issued
on March 29, 1985. Both plans were followed by a period of public comment,
pursuant to 16 U.S.C. Sec. 1604(d), which resulted in a number of changes to
both plans.
The Sierra Club brought an action against the Service in the district court on
April 2, 1990, over the Nicolet plan and on October 10, 1990, over the
Chequamegon plan. Suing under the Administrative Procedure Act ("APA"), 5
U.S.C. Sec. 701-06,3 the Sierra Club argued in both cases that the Service had
acted arbitrarily or capriciously in developing these forest management plans
and FEISs. The Sierra Club requested both declaratory and injunctive relief.
The Service, in turn, replied that the Sierra Club lacked standing to challenge
the forest plans or FEISs. Both sides moved for summary judgment.
At the threshold we must determine whether the Sierra Club has presented a
justiciable claim. The Sierra Club has challenged forest management plans
rather than specific Service actions that more directly affect a forest, and
these broad challenges raise questions of both standing and ripeness. Although
the doctrines of standing and ripeness ostensibly require different inquiries,
they "are closely related, and in cases like this one perhaps overlap
entirely." Smith v. Wisconsin Dept. of Agriculture, 23 F.3d 1134, 1141 (7th
Cir.1994); see also Warth v. Seldin, 422 U.S. 490, 499 n. 10, 95 S.Ct. 2197,
2205 n. 10, 45 L.Ed.2d 343 (1975) ("The standing question thus bears close
affinity to questions of ripeness--whether the harm asserted has matured
sufficiently to warrant judicial intervention...."); Gene R. Nichol, Jr.,
Ripeness and the Constitution, 54 U.Chi.L.Rev. 153, 155, 172-73 (1987) (noting
that "the ripeness requirement is often indistinguishable from actionability
analysis" and that no "line of demarcation" can be drawn between the Supreme
Court's analysis in standing cases where "threatened or actual injury" is at
issue and ripeness cases where the focus is on "direct and immediate harm").
Nonetheless, we will address standing and ripeness separately, reviewing the
district court's decision on both points de novo. See Indemnified Capital
Investments, S.A. v. R.J. O'Brien & Assoc., Inc., 12 F.3d 1406, 1409 (7th
Cir.1993).
The constitutional minimum for Article III standing contains three elements:
the actual or imminent invasion of a concrete and particularized
legally-protected interest (an "injury in fact"), a causal connection between
the defendant's actions and the injury, and a likelihood that the injury is
redressable by a favorable court decision. Lujan v. Defenders of Wildlife, ---
U.S. ----, ----, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). The Service does
not dispute, and we agree, that the Sierra Club's interest in this case--the
use and enjoyment of the Chequamegon and Nicolet Forests--is concrete and
legally cognizable, see Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct.
1361, 1366, 31 L.Ed.2d 636 (1972), and that the Sierra Club may maintain
standing on behalf of its members. See Hunt v. Washington Apple Advertising
Commn., 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). It is
also uncontested that the Service's actions could harm the Sierra Club's
interest and that this resulting injury is likely redressable through court
action. See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1517-18 (9th
Cir.1992) (discussing causation and redressability in the context of a forest
management plan).
Rather, the Service questions the imminence of the Sierra Club's alleged
injury. The Service notes that the forest management plans and FEISs are
`programmatic and do not themselves implement anything or specify that any
particular activity happen; the plans are thought without action. In the
absence of action, the Service argues, there is no imminent injury, and without
an imminent or "certainly impending" injury, there is no standing. Defenders,
--- U.S. at ----, 112 S.Ct. at 2136; Whitmore v. Arkansas, 495 U.S. 149, 158,
110 S.Ct. 1717, 1724-25, 109 L.Ed.2d 135 (1990).
All "permits, contracts, cooperative agreements, and other instruments for
occupancy and use of affected lands" in a national forest must be consistent
with the plan. 36 C.F.R. Sec. 219.10(e); see also Record in 94-1827 (Nicolet),
Pl.Ex. A at 5, Def.'s Resp. to Int. 11(d) (Service, in response to question
about broad issues of diversity, admitted that all decisions relevant to those
issues at the project level would be guided by the plan); Record in 94-1736
(Chequamegon), Pl.Ex. A at 6, Def.'s Resp. to Int. 11(d) (same). The plans
clearly require certain projects to be undertaken and indicate what their
effects may be. Cf. Charles F. Wilkinson and H. Michael Anderson, Land and
Resource Planning in the National Forests, 64 Or.L.Rev. 1, 74 (1985) ("Much
like zoning requirements or administrative regulations, the plans are
controlling and judicially enforceable until properly revised."). That "the
Service has yet to actually inflict the injury through the development of
site-specific projects does not render the injury 'conjectural' or
'speculative' and therefore does not deprive plaintiffs of standing to
challenge the plan." Nicolet, 843 F.Supp. at 1531; Chequamegon, 845 F.Supp. at
1321; see also Idaho Conservation League, 956 F.2d at 1515-17. As the Supreme
Court noted in the very sentence before it created the "certainly impending"
language on which the defendants rely, "[o]ne does not have to await the
consummation of threatened injury to obtain preventive relief." Pennsylvania v.
West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923).
With regard to NEPA and the FEISs, the Service's argument against standing is
even weaker. The Supreme Court explicitly stated in Lujan v. Defenders of
Wildlife that a plaintiff clearly has standing to sue where there is a concrete
injury underlying the procedural default even if the plan were not implemented
immediately. Defenders, --- U.S. at ---- & n. 7, 112 S.Ct. at 2142 & n. 7. As
the Ninth Circuit noted under similar circumstances, "the 'asserted injury is
that the environmental consequences might be overlooked,' as a result of
deficiencies in the government's analysis under environmental statutes."
Seattle Audubon Soc'y. v. Espy, 998 F.2d 699, 703 (9th Cir.1993); see also
Idaho Conservation League, 956 F.2d at 1516; In Oregon Natural Resources
Council v. Lowe, 836 F.Supp. 727, 732 (D.Or.1993); Morris v. Myers, 845 F.Supp.
750, 754 (D.Or.1993). Once the plan has passed administrative review, the
procedural injury has been inflicted. Unless a plaintiff's purported interest
in the matter is wholly speculative, waiting any longer to address that injury
makes little sense. Indeed, if the Sierra Club had to wait until the project
level to address general procedural injuries regarding a broad issue like
biological diversity, implementation of the forest plan might have progressed
too far to permit proper redress. See Rockford League of Women Voters v. United
States Nuclear Regulatory Comm'n, 679 F.2d 1218, 1221 (7th Cir.1982) (holding
that review of nuclear plant licensing procedures before issuance of license
proper even though threatened injury to inhabitants had not yet materialized).
Despite these obstacles to the Sierra Club's claim, deference does not mean
obeisance. Deference will not "shield [an agency] action from a thorough,
probing, in-depth review." Citizens to Preserve Overton Park, 401 U.S. at 415,
91 S.Ct. at 823; see also City of West Chicago, Ill. v. United States Nuclear
Regulatory Comm'n, 701 F.2d 632, 648 (7th Cir.1983). Where an "agency has
relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an explanation
for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the
product of agency expertise," the agency has violated the standards of the APA.
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43,
103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983).
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