|Posted by nationalforestlawblog on January 31, 2011 at 10:34 AM|
We recently reported about the 6th Circuit’s decision in Heartwood, Inc. v. Agpaoa, in which the court held that the plaintiff lacked standing to bring its legal challenge. Specifically, the court held that environmental plaintiffs lacked standing to challenge the 2004 forest plan for the Daniel Boone National Forest and a 2003 Ice Storm Recovery Project undertaken pursuant to the Plan.
Now, we can update this story to add that Heartwood has filed a notice for rehearing that includes a rebuttal brief addressing the standing issue – a challenge that was apparently first raised by the Forest Service at oral argument. Assuming that to be the case, the 6th Circuit’s decision was certainly a bit harsh. In their briefs Heartwood argues that it does have standing because (1) its injury is linked to the agency’s implementation of the Storm Salvage Project pursuant to the Forest Plan; (2) that had the Forest Service considered a “no-commercial logging alternative” the Storm Salvage Project would not have been considered; and (3) the declaration of one of its members shows the harm from the Storm Salvage Project.
Petitions for rehearing are a difficult proposition for any litigant, however, I am sure that the 6th Circuit will give this petition consideration due to the fact that Heartwood was never given an opportunity to respond to the Forest Service’s standing arguments. We’ll continue to monitor the situation.