SUMMERS et al. v. EARTH ISLAND INSTITUTE et al.

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488 OCTOBER TERM, 2008
Syllabus
SUMMERS et al. v. EARTH ISLAND INSTITUTE et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 07–463. Argued October 8, 2008—Decided March 3, 2009
After the U. S. Forest Service approved the Burnt Ridge Project, a sal
vage sale of timber on 238 acres of fire-damaged federal land, respond
ent environmentalist organizations filed suit to enjoin the Service from
applying its regulations exempting such small sales from the notice,
comment, and appeal process it uses for more significant land manage
ment decisions, and to challenge other regulations that did not apply
to Burnt Ridge. The District Court granted a preliminary injunction
against the sale, and the parties then settled their dispute as to Burnt
Ridge. Although concluding that the sale was no longer at issue, and
despite the Government’s argument that respondents therefore lacked
standing to challenge the regulations, the court nevertheless proceeded
to adjudicate the merits of their challenges, invalidating several regula
tions, including the notice and comment and the appeal provisions.
Among its rulings, the Ninth Circuit affirmed the determination that
the latter regulations, which were applicable to Burnt Ridge, were con
trary to law, but held that challenges to other regulations not at issue
in that project were not ripe for adjudication.
Held: Respondents lack standing to challenge the regulations still at issue
absent a live dispute over a concrete application of those regulations.
Pp. 492–501.
(a) In limiting the judicial power to “Cases” and “Controversies,” Ar
ticle III restricts it to redressing or preventing actual or imminently
threatened injury to persons caused by violation of law. See, e. g.,
Lujan v. Defenders of Wildlife, 504 U. S. 555, 559–560. The standing
doctrine reflects this fundamental limitation, requiring that “the
plaintiff . . . ‘alleg[e] such a personal stake in the outcome of the contro
versy’ as to warrant his invocation of federal-court jurisdiction,” Warth
v. Seldin, 422 U. S. 490, 498–499. Here, respondents can demonstrate
standing only if application of the regulations will affect them in such a
manner. Pp. 492–494.
(b) As organizations, respondents can assert their members’ standing.
Harm to their members’ recreational, or even their mere esthetic, inter
ests in the national forests will suffice to establish the requisite concrete
and particularized injury, see Sierra Club v. Morton, 405 U. S. 727, 734–
736, but generalized harm to the forest or the environment will not alone

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Syllabus
suffice. Respondents have identified no application of the invalidated
regulations that threatens imminent and concrete harm to their mem
bers’ interests. Respondents’ argument that they have standing based
on Burnt Ridge fails because, after voluntarily settling the portion of
their lawsuit relevant to Burnt Ridge, respondents and their members
are no longer under threat of injury from that project. The remaining
affidavit submitted in support of standing fails to establish that any
member has concrete plans to visit a site where the challenged regula
tions are being applied in a manner that will harm that member’s con
crete interests. Additional affidavits purporting to establish standing
were submitted after judgment had already been entered and notice of
appeal filed, and are thus untimely. Pp. 494–496.
(c) Respondents’ argument that they have standing because they
have suffered procedural injury—i. e., they have been denied the ability
to file comments on some Forest Service actions and will continue to be
so denied—fails because such a deprivation without some concrete inter
est affected thereby is insufficient to create Article III standing. See,
e. g., Defenders of Wildlife, supra, at 572, n. 7. Pp. 496–497.
(d) The dissent’s objections are addressed and rejected. Pp. 497–500.
490 F. 3d 687, reversed in part and affirmed in part.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Thomas, and Alito, JJ., joined. Kennedy, J., filed a con
curring opinion, post, p. 501. Breyer, J., filed a dissenting opinion, in
which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 501.
Then-Deputy Solicitor General Kneedler argued the cause
for petitioners. With him on the briefs were former Solici
tors General Clement and Garre, Assistant Attorney Gen
eral Tenpas, Malcolm L. Stewart, Katherine W. Hazard, and
Marc L. Kesselman.
Matt G. Kenna argued the cause for respondents. With
him on the brief was Scott L. Nelson.*
*Briefs of amici curiae urging reversal were filed for the American
Forest & Paper Association et al. by Thomas R. Lundquist, Steven P.
Quarles, J. Michael Klise, Duane J. Desiderio, Thomas J. Ward, William
R. Murray, and Douglas T. Nelson; for Douglas Timber Operators et al.
by Caroline C. Lobdell; and for the Pacific Legal Foundation by M. Reed
Hopper and Damien M. Schiff.
A brief of amicus curiae urging affirmance was filed for the State of
California ex rel. Edmund G. Brown, Jr., Attorney General of California,

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490 SUMMERS v. EARTH ISLAND INSTITUTE
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
Respondents are a group of organizations dedicated to pro
tecting the environment. (We will refer to them collectively
as “Earth Island.”) They seek to prevent the United States
Forest Service from enforcing regulations that exempt small
fire-rehabilitation and timber-salvage projects from the no
tice, comment, and appeal process used by the Forest Service
for more significant land management decisions. We must
determine whether respondents have standing to challenge
the regulations in the absence of a live dispute over a con
crete application of those regulations.
I
In 1992, Congress enacted the Forest Service Decision
making and Appeals Reform Act (Appeals Reform Act or
Act), Pub. L. 102–381, Tit. III, § 322, 106 Stat. 1419, note
following 16 U. S. C. § 1612. Among other things, this re
quired the Forest Service to establish a notice, comment, and
appeal process for “proposed actions of the Forest Service
concerning projects and activities implementing land and re
source management plans developed under the Forest and
Rangeland Renewable Resources Planning Act of 1974.”
Ibid.
The Forest Service’s regulations implementing the Act
provided that certain of its procedures would not be applied
to projects that the Service considered categorically ex
cluded from the requirement to file an environmental impact
statement (EIS) or environmental assessment (EA). 36
CFR §§ 215.4(a) (notice and comment), 215.12(f) (appeal)
(2008). Later amendments to the Forest Service’s manual
of implementing procedures, adopted by rule after notice and
by Mr. Brown, pro se, J. Matthew Rodriguez, Chief Assistant Attorney
General, Kenneth Alex, Senior Assistant Attorney General, Sally Mag
nani Knox, Supervising Deputy Attorney General, and Raissa S. Lerner,
Deputy Attorney General.
Amanda C. Leiter filed a brief for Law Professors as amici curiae.

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comment, provided that fire-rehabilitation activities on areas
of less than 4,200 acres, and salvage-timber sales of 250 acres
or less, did not cause a significant environmental impact and
thus would be categorically exempt from the requirement to
file an EIS or EA. 68 Fed. Reg. 33824 (2003) (Forest Serv
ice Handbook (FSH) 1909.15, ch. 30, § 31.2(11)); 68 Fed. Reg.
44607 (FSH 1909.15, ch. 30, § 31.2(13)). This had the effect
of excluding these projects from the notice, comment, and
appeal process.
In the summer of 2002, fire burned a significant area of the
Sequoia National Forest. In September 2003, the Service
issued a decision memo approving the Burnt Ridge Project,
a salvage sale of timber on 238 acres damaged by that fire.
Pursuant to its categorical exclusion of salvage sales of less
than 250 acres, the Forest Service did not provide notice in
a form consistent with the Appeals Reform Act, did not pro
vide a period of public comment, and did not make an appeal
process available.
In December 2003, respondents filed a complaint in the
Eastern District of California, challenging the failure of the
Forest Service to apply to the Burnt Ridge Project § 215.4(a)
of its regulations implementing the Appeals Reform Act (re
quiring prior notice and comment), and § 215.12(f) of the reg
ulations (setting forth an appeal procedure). The complaint
also challenged six other Forest Service regulations imple
menting the Act that were not applied to the Burnt Ridge
Project. They are irrelevant to this appeal.
The District Court granted a preliminary injunction
against the Burnt Ridge salvage-timber sale. Soon thereaf
ter, the parties settled their dispute over the Burnt Ridge
Project and the District Court concluded that “the Burnt
Ridge timber sale is not at issue in this case.” Earth Island
Inst. v. Pengilly, 376 F. Supp. 2d 994, 999 (ED Cal. 2005).
The Government argued that, with the Burnt Ridge dispute
settled, and with no other project before the court in which
respondents were threatened with injury in fact, respond

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ents lacked standing to challenge the regulations; and that
absent a concrete dispute over a particular project a chal
lenge to the regulations would not be ripe. The District
Court proceeded, however, to adjudicate the merits of Earth
Island’s challenges. It invalidated five of the regulations
(including §§ 215.4(a) and 215.12(f)), id., at 1011, and entered
a nationwide injunction against their application, Earth Is
land Inst. v. Ruthenbeck, No. CIV F–03–6386 JKS, 2005 WL
5280466, *2 (Sept. 20, 2005).
The Ninth Circuit held that Earth Island’s challenges to
regulations not at issue in the Burnt Ridge Project were not
ripe for adjudication because there was “not a sufficient ‘case
or controversy’ ” before the court to sustain a facial chal
lenge. Earth Island Inst. v. Ruthenbeck, 490 F. 3d 687, 696
(2007) (amended opinion). It affirmed, however, the District
Court’s determination that §§ 215.4(a) and 215.12(f), which
were applicable to the Burnt Ridge Project, were contrary
to law, and upheld the nationwide injunction against their
application.
The Government sought review of the question whether
Earth Island could challenge the regulations at issue in the
Burnt Ridge Project, and if so whether a nationwide injunc
tion was appropriate relief. We granted certiorari, 552 U. S.
1162 (2008).
II
In limiting the judicial power to “Cases” and “Controver
sies,” Article III of the Constitution restricts it to the tradi
tional role of Anglo-American courts, which is to redress or
prevent actual or imminently threatened injury to persons
caused by private or official violation of law. Except when
necessary in the execution of that function, courts have no
charter to review and revise legislative and executive action.
See Lujan v. Defenders of Wildlife, 504 U. S. 555, 559–560
(1992); Los Angeles v. Lyons, 461 U. S. 95, 111–112 (1983).
This limitation “is founded in concern about the proper—and

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properly limited—role of the courts in a democratic society.”
Warth v. Seldin, 422 U. S. 490, 498 (1975). See United
States v. Richardson, 418 U. S. 166, 179 (1974).
The doctrine of standing is one of several doctrines that
reflect this fundamental limitation. It requires federal
courts to satisfy themselves that “the plaintiff has ‘alleged
such a personal stake in the outcome of the controversy’
as to warrant his invocation of federal-court jurisdiction.”
Warth, supra, at 498–499. He bears the burden of showing
that he has standing for each type of relief sought. See
Lyons, supra, at 105. 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. Friends of Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167,
180–181 (2000). This requirement assures that “there is a
real need to exercise the power of judicial review in order to
protect the interests of the complaining party,” Schlesinger
v. Reservists Comm. to Stop the War, 418 U. S. 208, 221
(1974). Where that need does not exist, allowing courts to
oversee legislative or executive action “would significantly
alter the allocation of power . . . away from a democratic
form of government,” Richardson, supra, at 188 (Powell, J.,
concurring).
The regulations under challenge here neither require nor
forbid any action on the part of respondents. The standards
and procedures that they prescribe for Forest Service ap
peals govern only the conduct of Forest Service officials
engaged in project planning. “[W]hen the plaintiff is not
himself the object of the government action or inaction
he challenges, standing is not precluded, but it is ordinar
ily ‘substantially more difficult’ to establish.” Defenders of

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Wildlife, supra, at 562. Here, respondents can demonstrate
standing only if application of the regulations by the Govern
ment will affect them in the manner described above.
It is common ground that the respondent organizations can
assert the standing of their members. To establish the con
crete and particularized injury that standing requires, re
spondents point to their members’ recreational interests in
the national forests. While generalized harm to the forest
or the environment will not alone support standing, if that
harm in fact affects the recreational or even the mere es
thetic interests of the plaintiff, that will suffice. Sierra
Club v. Morton, 405 U. S. 727, 734–736 (1972).
Affidavits submitted to the District Court alleged that or
ganization member Ara Marderosian had repeatedly visited
the Burnt Ridge site, that he had imminent plans to do so
again, and that his interests in viewing the flora and fauna
of the area would be harmed if the Burnt Ridge Project went
forward without incorporation of the ideas he would have
suggested if the Forest Service had provided him an oppor
tunity to comment. The Government concedes this was suf
ficient to establish Article III standing with respect to Burnt
Ridge. Brief for Petitioners 28. Marderosian’s threatened
injury with regard to that project was originally one of the
bases for the present suit. After the District Court had is
sued a preliminary injunction, however, the parties settled
their differences on that score. Marderosian’s injury in fact
with regard to that project has been remedied, and it is, as
the District Court pronounced, “not at issue in this case.”
376 F. Supp. 2d, at 999. We know of no precedent for the
proposition that when a plaintiff has sued to challenge the
lawfulness of certain action or threatened action but has set
tled that suit, he retains standing to challenge the basis for
that action (here, the regulation in the abstract), apart from
any concrete application that threatens imminent harm to
his interests. Such a holding would fly in the face of Article
III’s injury-in-fact requirement. See Lyons, supra, at 111.

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Respondents have identified no other application of the in
validated regulations that threatens imminent and concrete
harm to the interests of their members. The only other af
fidavit relied on was that of Jim Bensman.* He asserted,
first, that he had suffered injury in the past from devel
opment on Forest Service land. That does not suffice for
several reasons: because it was not tied to application of
the challenged regulations, because it does not identify any
particular site, and because it relates to past injury rather
than imminent future injury that is sought to be enjoined.
Bensman’s affidavit further asserts that he has visited
many national forests and plans to visit several unnamed na
tional forests in the future. Respondents describe this as a
mere failure to “provide the name of each timber sale that
affected [Bensman’s] interests,” Brief for Respondents 44.
It is much more (or much less) than that. It is a failure to
allege that any particular timber sale or other project
claimed to be unlawfully subject to the regulations will im
pede a specific and concrete plan of Bensman’s to enjoy the
national forests. The national forests occupy more than 190
million acres, an area larger than Texas. See Meet the For
est Service, http://www.fs.fed.us/aboutus/meetfs.shtml (as
visited Feb. 27, 2009, and available in Clerk of Court’s case
file). There may be a chance, but is hardly a likelihood, that
Bensman’s wanderings will bring him to a parcel about to be
affected by a project unlawfully subject to the regulations.
Indeed, without further specification it is impossible to tell
which projects are (in respondents’ view) unlawfully subject
to the regulations. The allegations here present a weaker
likelihood of concrete harm than that which we found insuf
ficient in Lyons, 461 U. S. 95, where a plaintiff who alleged
*After the District Court had entered judgment, and after the Govern
ment had filed its notice of appeal, respondents submitted additional affi
davits to the District Court. We do not consider these. If respondents
had not met the challenge to their standing at the time of judgment, they
could not remedy the defect retroactively.

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that he had been injured by an improper police chokehold
sought injunctive relief barring use of the hold in the future.
We said it was “no more than conjecture” that Lyons would
be subjected to that chokehold upon a later encounter. Id.,
at 108. Here we are asked to assume not only that Bensman
will stumble across a project tract unlawfully subject to the
regulations, but also that the tract is about to be developed
by the Forest Service in a way that harms his recreational
interests, and that he would have commented on the project
but for the regulation. Accepting an intention to visit the
national forests as adequate to confer standing to challenge
any Government action affecting any portion of those forests
would be tantamount to eliminating the requirement of con
crete, particularized injury in fact.
The Bensman affidavit does refer specifically to a series of
projects in the Allegheny National Forest that are subject
to the challenged regulations. It does not assert, however,
any firm intention to visit their locations, saying only that
Bensman “ ‘want[s] to’ ” go there. Brief for Petitioners 6.
This vague desire to return is insufficient to satisfy the re
quirement of imminent injury: “Such ‘some day’ intentions—
without any description of concrete plans, or indeed even any
specification of when the some day will be—do not support
a finding of the ‘actual or imminent’ injury that our cases
require.” Defenders of Wildlife, 504 U. S., at 564.
Respondents argue that they have standing to bring their
challenge because they have suffered procedural injury,
namely, that they have been denied the ability to file com
ments on some Forest Service actions and will continue to
be so denied. But 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. Only a “person who has been accorded a pro
cedural right to protect his concrete interests can assert that
right without meeting all the normal standards for redress
ability and immediacy.” Id., at 572, n. 7 (emphasis added).

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Respondents alleged such injury in their challenge to the
Burnt Ridge Project, claiming that but for the allegedly un
lawful abridged procedures they would have been able to
oppose the project that threatened to impinge on their con
crete plans to observe nature in that specific area. But
Burnt Ridge is now off the table.
It makes no difference that the procedural right has been
accorded by Congress. That can loosen the strictures of the
redressability prong of our standing inquiry—so that stand
ing existed with regard to the Burnt Ridge Project, for ex
ample, despite the possibility that Earth Island’s allegedly
guaranteed right to comment would not be successful in per
suading the Forest Service to avoid impairment of Earth Is
land’s concrete interests. See ibid. Unlike redressability,
however, the requirement of injury in fact is a hard floor of
Article III jurisdiction that cannot be removed by statute.
“[I]t would exceed [Article III’s] limitations if, at the
behest of Congress and in the absence of any showing
of concrete injury, we were to entertain citizen suits to
vindicate the public’s nonconcrete interest in the proper
administration of the laws. . . . [T]he party bringing suit
must show that the action injures him in a concrete and
personal way.” Id., at 580–581 (Kennedy, J., concur
ring in part and concurring in judgment).
III
The dissent proposes a hitherto unheard-of test for organi
zational standing: whether, accepting the organization’s self
description of the activities of its members, there is a statis
tical probability that some of those members are threatened
with concrete injury. Since, for example, the Sierra Club
asserts in its pleadings that it has more than “ ‘700,000 mem
bers nationwide, including thousands of members in Califor
nia’ who ‘use and enjoy the Sequoia National Forest,’ ” post,
at 502 (opinion of Breyer, J.), it is probable (according to the
dissent) that some (unidentified) members have planned to

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visit some (unidentified) small parcels affected by the Forest
Service’s procedures and will suffer (unidentified) concrete
harm as a result. This novel approach to the law of organi
zational standing would make a mockery of our prior cases,
which have required plaintiff-organizations to make specific
allegations establishing that at least one identified member
had suffered or would suffer harm. In Defenders of Wild
life, supra, at 563, we held that the organization lacked
standing because it failed to “submit affidavits . . . showing,
through specific facts . . . that one or more of [its] members
would . . . be ‘directly’ affected” by the allegedly illegal activ
ity. Morton, 405 U. S. 727, involved the same Sierra Club
that is a party in the present case, and a project in the Se
quoia National Forest. The principal difference from the
present case is that the challenged project was truly mas
sive, involving the construction of motels, restaurants, swim
ming pools, parking lots, and other structures on 80 acres of
the Forest, plus ski lifts, ski trails, and a 20-mile access high
way. We did not engage in an assessment of statistical prob
abilities that one of the Sierra Club’s members would be
adversely affected, but held that the Sierra Club lacked
standing. We said:
“The Sierra Club failed to allege that it or its members
would be affected in any of their activities or pastimes
by the Disney development. Nowhere in the pleadings
or affidavits did the Club state that its members use
Mineral King for any purpose, much less that they use
it in any way that would be significantly affected by the
proposed actions of the respondents.” Id., at 735.
And in FW/PBS, Inc. v. Dallas, 493 U. S. 215, 235 (1990),
we noted that the affidavit provided by the city to establish
standing would be insufficient because it did not name the
individuals who were harmed by the challenged license
revocation program. This requirement of naming the af
fected members has never been dispensed with in light of

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statistical probabilities, but only where all the members of
the organization are affected by the challenged activity.
See, e. g., NAACP v. Alabama ex rel. Patterson, 357 U. S.
449, 459 (1958) (all organization members affected by release
of membership lists).
A major problem with the dissent’s approach is that it ac
cepts the organizations’ self-descriptions of their member
ship, on the simple ground that “no one denies” them, post,
at 506. But it is well established that the court has an inde
pendent obligation to assure that standing exists, regardless
of whether it is challenged by any of the parties. Bender v.
Williamsport Area School Dist., 475 U. S. 534, 541 (1986).
Without individual affidavits, how is the court to assure itself
that the Sierra Club, for example, has “ ‘thousands of mem
bers’ ” who “ ‘use and enjoy the Sequoia National Forest’ ”?
And, because to establish standing plaintiffs must show that
they “use the area affected by the challenged activity and
not an area roughly in the vicinity of ” a project site, Defend
ers of Wildlife, 504 U. S., at 566 (internal quotation marks
omitted), how is the court to assure itself that some of these
members plan to make use of the specific sites upon which
projects may take place? Or that these same individuals
will find their recreation burdened by the Forest Service’s
use of the challenged procedures? While it is certainly pos
sible—perhaps even likely—that one individual will meet all
of these criteria, that speculation does not suffice. “Stand
ing,” we have said, “is not ‘an ingenious academic exercise in
the conceivable’ . . . [but] requires . . . a factual showing of
perceptible harm.” Ibid. In part because of the difficulty
of verifying the facts upon which such probabilistic standing
depends, the Court has required plaintiffs claiming an orga
nizational standing to identify members who have suffered
the requisite harm—surely not a difficult task here, when so
many thousands are alleged to have been harmed.
The dissent would have us replace the requirement of
“ ‘imminent’ ” harm, which it acknowledges our cases estab

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lish, see post, at 505, with the requirement of “ ‘a realistic
threat’ that reoccurrence of the challenged activity would
cause [the plaintiff] harm ‘in the reasonably near future,’ ”
ibid. That language is taken, of course, from an opinion that
did not find standing, so the seeming expansiveness of the
test made not a bit of difference. The problem for the dis
sent is that the timely affidavits no more meet that require
ment than they meet the usual formulation. They fail to
establish that the affiants’ members will ever visit one of the
small parcels at issue.
The dissent insists, however, that we should also have con
sidered the late-filed affidavits. It invokes Federal Rule of
Civil Procedure 15(d) (West 2008 rev. ed.), which says that
“[t]he court may permit supplementation even though the
original pleading is defective in stating a claim or defense.”
So also does Rule 21 permit joinder of parties “at any time.”
But the latter no more permits joinder of parties, than the
former permits the supplementation of the record, in the cir
cumstances here: after the trial is over, judgment has been
entered, and a notice of appeal has been filed. The dissent
cites no instance in which “supplementation” has been per
mitted to resurrect and alter the outcome in a case that has
gone to judgment, and indeed after notice of appeal had been
filed. If Rule 15(b) allows additional facts to be inserted
into the record after appeal has been filed, we are at the
threshold of a brave new world of trial practice in which
Rule 60 has been swallowed whole by Rule 15(b).
* * *
Since we have resolved this case on the ground of stand
ing, we need not reach the Government’s contention that
plaintiffs have not demonstrated that the regulations are
ripe for review under the Administrative Procedure Act.
We likewise do not reach the question whether, if respond

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Breyer, J., dissenting
ents prevailed, a nationwide injunction would be appro
priate. And we do not disturb the dismissal of respondents’
challenge to the remaining regulations, which has not been
appealed.
The judgment of the Court of Appeals is reversed in part
and affirmed in part.
It is so ordered.
Justice Kennedy, concurring.
I join in full the opinion of the Court. As the opinion
explains, “deprivation of a procedural right without some
concrete interest that is affected by the deprivation—a pro
cedural right in vacuo—is insufficient to create Article III
standing.” Ante, at 496. The procedural injury must “im
pair a separate concrete interest.” Lujan v. Defenders of
Wildlife, 504 U. S. 555, 572 (1992).
This case would present different considerations if Con
gress had sought to provide redress for a concrete injury
“giv[ing] rise to a case or controversy where none existed
before.” Id., at 580 (Kennedy, J., concurring in part and
concurring in judgment). Nothing in the statute at issue
here, however, indicates Congress intended to identify or
confer some interest separate and apart from a procedural
right.
Justice Breyer, with whom Justice Stevens, Justice
Souter, and Justice Ginsburg join, dissenting.
The Court holds that the Sierra Club and its members
(along with other environmental organizations) do not suffer
any “ ‘concrete injury’ ” when the Forest Service sells timber
for logging on many thousands of small (250-acre or less)
woodland parcels without following legally required proce
dures—procedures which, if followed, could lead the Service
to cancel or to modify the sales. Ante, at 497. Nothing in
the record or the law justifies this counterintuitive conclusion.

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502 SUMMERS v. EARTH ISLAND INSTITUTE
Breyer, J., dissenting
I
A
The plaintiffs, respondents in this case, are five environ
mental organizations. The Earth Island Institute, a Califor
nia organization, has over 15,000 members in the United
States, over 3,000 of whom “use and enjoy the National For
ests of California for recreational, educational, aesthetic,
spiritual and other purposes.” Corrected Complaint for De
claratory and Injunctive Relief in Case No. CIV–F–03–630
REC DLB (ED Cal.), ¶ 8, App. 31 (hereinafter Complaint).
The Sequoia ForestKeeper, a small organization, has “100
plus” members who “use the forests of the Southern Sierra
Nevada for activities such as hiking, bird and animal watch
ing, aesthetic enjoyment, quiet contemplation, fishing and
scientific study.” Id., ¶ 9, at 32. Heartwood, Inc., located
in Illinois and Indiana, is a coalition of environmental organi
zations with “members” who “continually use the National
Forests for the purposes of ecological health, recreation, aes
thetic enjoyment, and other purposes.” Id., ¶ 10, at 33.
The Center for Biological Diversity, located in Arizona, Cali
fornia, New Mexico, and Washington, has over 5,000 mem
bers who “use Forest Service lands,” and who are “dedicated
to the preservation, protection, and restoration of biological
diversity, native species and ecosystems in the Western
United States and elsewhere.” Id., ¶ 11, at 33. The Sierra
Club has more than “700,000 members nationwide, including
thousands of members in California” who “use and enjoy the
Sequoia National Forest” for “outdoor recreation and scien
tific study of various kinds, including nature study, bird
watching, photography, fishing, canoeing, hunting, backpack
ing, camping, solitude, and a variety of other activities.”
Id., ¶ 12, at 34.
These five organizations point to a federal law that says
the Forest Service “shall establish a notice and comment
process,” along with a procedure for filing administrative

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“appeals,” for “proposed actions . . . concerning projects and
activities implementing land and resource management
plans . . . .” § 322, 106 Stat. 1419, note following 16 U. S. C.
§ 1612. They add that the Service has exempted from “no
tice, comment, and appeal” processes its decisions that allow,
among other things, salvage-timber sales on burned forest
lands of less than 250 acres in size. 36 CFR §§ 215.4(a),
215.12(f) (2008); see also 68 Fed. Reg. 44607–44608 (2003)
(describing projects exempted). And they claim that
the Service’s refusal to provide notice, comment, and ap
peal procedures violates the statute. Complaint ¶¶ 105–
106, App. 61.
B
The majority says that the plaintiffs lack constitutional
standing to raise this claim. It holds that the dispute be
tween the five environmental groups and the Forest Service
consists simply of an abstract challenge; it does not amount
to the concrete “Cas[e]” or “Controvers[y]” that the Consti
tution grants federal courts the power to resolve. Art. III,
§ 2, cl. 1. I cannot agree that this is so.
To understand the constitutional issue that the majority
decides, it may prove helpful to imagine that Congress
enacted a statutory provision that expressly permitted envi
ronmental groups like respondents here to bring cases just
like the present one, provided (1) that the group has mem
bers who have used salvage-timber parcels in the past and
are likely to do so in the future, and (2) that the group’s
members have opposed Forest Service timber sales in
the past (using notice, comment, and appeal procedures to
do so) and will likely use those procedures to oppose
salvage-timber sales in the future. The majority cannot,
and does not, claim that such a statute would be unconsti
tutional. See Massachusetts v. EPA, 549 U. S. 497, 516–
518 (2007); Sierra Club v. Morton, 405 U. S. 727, 734–738
(1972). How then can it find the present case constitution
ally unauthorized?

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I believe the majority answers this question as follows: It
recognizes, as this Court has held, that a plaintiff has consti
tutional standing if the plaintiff demonstrates (1) an “ ‘injury
in fact,’ ” (2) that is “fairly traceable” to the defendant’s
“challenged action,” and which (3) a “favorable [judicial] de
cision” will likely prevent or redress. Friends of Earth,
Inc. v. Laidlaw Environmental Services (TOC), Inc., 528
U. S. 167, 180–181 (2000). The majority does not deny that
the plaintiffs meet the latter two requirements. It focuses
only upon the first, the presence of “actual,” as opposed to
“conjectural or hypothetical,” injury. Id., at 180. In doing
so, it properly agrees that the “organizations” here can “as
sert the standing of their members.” Ante, at 494. It points
out that injuries to the “members’ recreational” or even
“mere esthetic interests . . . will suffice.” Ibid. It does not
claim that the procedural nature of the plaintiffs’ claim
makes the difference here, for it says only that “deprivation
of a procedural right without some concrete interest”
thereby affected, i. e., “a procedural right in vacuo,” would
prove “insufficient to create Article III standing.” Ante, at
496 (emphasis added); see also EPA, supra, at 517–518. The
majority assumes, as do I, that these unlawful Forest Service
procedures will lead to substantive actions, namely, the sales
of salvage timber on burned lands, that might not take place
if the proper procedures were followed. But the majority
then finds that the plaintiffs have not sufficiently demon
strated that these salvage-timber sales cause the plaintiffs
an actual injury, that is, harm to the recreational, esthetic,
or other environmental interests of organization members.
Ante, at 494–496. To put the matter in terms of my hypo
thetical statute, the majority holds that the plaintiff organi
zations, while showing that they have members who have
used salvage-timber sale parcels in the past (i. e., parcels that
the Service does not subject to the notice, comment, and ap
peal procedures required by law), have failed to show that
they have members likely to use such parcels in the future.

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II
How can the majority credibly claim that salvage-timber
sales, and similar projects, are unlikely to harm the asserted
interests of the members of these environmental groups?
The majority apparently does so in part by arguing that the
Forest Service actions are not “imminent”—a requirement
more appropriately considered in the context of ripeness or
the necessity of injunctive relief. See Ohio Forestry Assn.,
Inc. v. Sierra Club, 523 U. S. 726, 734 (1998). I concede that
the Court has sometimes used the word “imminent” in the
context of constitutional standing. But it has done so pri
marily to emphasize that the harm in question—the harm
that was not “imminent”—was merely “conjectural” or “hy
pothetical” or otherwise speculative. Lujan v. Defenders of
Wildlife, 504 U. S. 555, 560 (1992) (internal quotation marks
omitted). Where the Court has directly focused upon the
matter, i. e., where, as here, a plaintiff has already been sub
ject to the injury it wishes to challenge, the Court has asked
whether there is a realistic likelihood that the challenged
future conduct will, in fact, recur and harm the plaintiff.
That is what the Court said in Los Angeles v. Lyons, 461
U. S. 95 (1983), a case involving a plaintiff ’s attempt to enjoin
police use of chokeholds. The Court wrote that the plaintiff,
who had been subject to the unlawful chokehold in the past,
would have had standing had he shown “a realistic threat”
that reoccurrence of the challenged activity would cause him
harm “in the reasonably near future.” Id., at 107, n. 7, 108
(emphasis added). Precedent nowhere suggests that the
“realistic threat” standard contains identification require
ments more stringent than the word “realistic” implies.
See Blum v. Yaretsky, 457 U. S. 991, 1000 (1982).
How could the Court impose a stricter criterion? Would
courts deny standing to a holder of a future interest in prop
erty who complains that a life tenant’s waste of the land will
almost inevitably hurt the value of his interest—though he
will have no personal interest for several years into the fu

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ture? Would courts deny standing to a landowner who com
plains that a neighbor’s upstream dam constitutes a nui
sance—even if the harm to his downstream property (while
bound to occur) will not occur for several years? Would
courts deny standing to an injured person seeking a protec
tion order from future realistic (but nongeographically spe
cific) threats of further attacks?
To the contrary, a threat of future harm may be realistic
even where the plaintiff cannot specify precise times, dates,
and GPS coordinates. Thus, we recently held that Massa
chusetts has standing to complain of a procedural failing,
namely, the Environmental Protection Agency’s failure prop
erly to determine whether to restrict carbon dioxide emis
sions, even though that failing would create Massachusetts
based harm which (though likely to occur) might not occur
for several decades. EPA, 549 U. S., at 522–523.
The Forest Service admits that it intends to conduct thou
sands of further salvage-timber sales and other projects ex
empted under the challenged regulations “in the reasonably
near future.” See Defendants’ Motion to Clarify and Amend
Judgment in No. CIV–F–03–6386–JKS–DLB (ED Cal.),
pp. 13–14. How then can the Court deny that the plaintiffs
have shown a “realistic” threat that the Forest Service will
continue to authorize (without the procedures claimed neces
sary) salvage-timber sales, and other Forest Service proj
ects, that adversely affect the recreational, esthetic, and
environmental interests of the plaintiffs’ members?
Consider: Respondents allege, and the Government has
conceded, that the Forest Service took wrongful actions
(such as selling salvage timber) “thousands” of times in the
two years prior to suit. Id., at 6; see also id., Exh. 2, Decl. of
Gloria Manning, Associate Deputy Chief for National Forest
System ¶ 6, p. 3 (identifying 3,377 “proposed decisions,” “[a]s
of July 1, 2005,” that would be excluded from notice, com
ment, and appeal procedures). The Complaint alleges, and
no one denies, that the organizations, the Sierra Club for

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example, have hundreds of thousands of members who use
forests regularly across the Nation for recreational, scien
tific, esthetic, and environmental purposes. Complaint
¶¶ 8–12, App. 31–34. The Complaint further alleges, and no
one denies, that these organizations (and their members), be
lieving that actions such as salvage-timber sales harm those
interests, regularly oppose salvage-timber sales (and similar
actions) in proceedings before the agency. Ibid. And the
Complaint alleges, and no one denies, that the organizations
intend to continue to express their opposition to such actions
in those proceedings in the future. Ibid.
Consider further: The affidavit of a member of Sequoia
ForestKeeper, Ara Marderosian, attached to the Complaint,
specifies that Marderosian had visited the Burnt Ridge Proj
ect site in the past and intended to return. The majority
concedes that this is sufficient to show that Marderosian had
standing to challenge the Burnt Ridge Project. The major
ity must therefore agree that “at least one identified member
ha[s] suffered . . . harm.” Ante, at 498. Why then does it
find insufficient the affidavit, also attached to the Complaint,
of Jim Bensman, a member of Heartwood, Inc.? That affi
davit states, among other things, that Bensman has visited
70 national forests, that he has visited some of those forests
“hundreds of times,” that he has often visited the Allegheny
National Forest in the past, that he has “probably com
mented on a thousand” Forest Service projects including
salvage-timber sale proposals, that he intends to continue to
comment on similar Forest Service proposals, and that the
Forest Service plans in the future to conduct salvage-timber
sales on 20 parcels in the Allegheny National Forest—one of
the forests he has visited in the past. ¶¶ 6, 13, App. E to
Pet. for Cert. 68a, 69a, 71a.
The Bensman affidavit does not say which particular sites
will be affected by future Forest Service projects, but the
Service itself has conceded that it will conduct thousands of
exempted projects in the future. Why is more specificity

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needed to show a “realistic” threat that a project will impact
land Bensman uses? To know, virtually for certain, that
snow will fall in New England this winter is not to know the
name of each particular town where it is bound to arrive.
The law of standing does not require the latter kind of speci
ficity. How could it? And Sierra Club v. Morton, 405 U. S.
727, on which the majority so heavily relies, involved plain
tiffs who challenged (true, a “massive”) development, but
only on a single previously determined site, about 80 acres
in size, in a portion of the forest with a “limited . . . number
of visitors.” Id., at 728. The Court’s unwillingness to infer
harm to the Sierra Club’s members there does not demand a
similar unwillingness here, where the challenge is to proce
dures affecting “thousands” of sites, involving hundreds of
times as much acreage, where the precise location of each
may not yet be known. In Sierra Club v. Morton, it may
have been unreasonable simply to assume that members
would suffer an “injury in fact.” But here, given the very
different factual circumstances, it is unreasonable to believe
they would not.
Whatever doubt may remain is settled by the affidavits
the plaintiffs submitted after the Burnt Ridge dispute was
settled (while the other claims in the Complaint remained
alive). The majority says it will not consider those affida
vits because they were submitted “[a]fter the District Court
had entered judgment.” Ante, at 495, n. But the plaintiffs
submitted the affidavits after judgment (in opposition to the
Government’s motion for a stay) because the Burnt Ridge
dispute on which they had relied to show standing at the
outset of suit had by that point been settled. No longer
wishing to rely solely on evidence of their members’ interest
in that particular project, the plaintiff organizations submit
ted several other affidavits. Why describe this perfectly
sensible response to the settlement of some of the Com
plaint’s claims as a “retroactiv[e]” attempt to “me[e]t the
challenge to their standing at the time of judgment”? Ibid.

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In fact, the Government did not challenge standing until that
point, so of course respondents (who all agree had standing
at the outset) did not respond with affidavits until later—
when their standing was challenged. This can hardly be
characterized as an attempt to “resurrect and alter the out
come” in the case. Ante, at 500. Regardless, the Constitu
tion does not bar the filing of further affidavits, nor does any
statute. The Federal Rules of Civil Procedure contain no
such bar. Indeed, those Rules provide a judge with liberal
discretion to permit a plaintiff to amend a complaint—even
after one dispute (of several) is settled. So why would they
not permit the filing of affidavits—at least with the judge’s
permission? See Fed. Rule Civ. Proc. 15(d) (West 2008 rev.
ed.) (“The court may permit supplementation even though
the original pleading is defective in stating a claim or
defense”).
The affidavits in question describe a number of then
pending Forest Service projects, all excluded from notice,
comment, and appeal under the Forest Service regulations
and all scheduled to take place on parcels that the plaintiff
organizations’ members use. Erik Ryberg, for example, a
member of the Center for Biological Diversity, described in
his affidavit a proposed logging project scheduled for the
Payette National Forest—an area with which he is “person
ally familiar.” ¶ 6, App. 90. A second affidavit filed by Jim
Bensman described a salvage-timber sale scheduled for the
Hoosier National Forest—an area Bensman had visited “mul
tiple times” and to which he planned to return in the coming
weeks—and one planned for the Daniel Boone National For
est—also used by Bensman—which would “impact [Heart
wood’s] members[’] use of the areas.” ¶¶ 8–9, id., at 85–86.
The affidavits also describe, among other things, the fre
quency with which the organizations’ members routinely file
administrative appeals of salvage-timber sales and identify a
number of proposed and pending projects that certain Sierra
Club members wished to appeal. See Decl. of Rene´ Voss

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¶ 3, id., at 94 (describing a proposed logging and prescribed
burn planned for the Gallatin National Forest); Decl. of Craig
Thomas ¶¶ 3, 13, id., at 95, 98 (describing Thomas’ “use” and
“enjoy[ment]” of the “Sierra Nevada national forests for rec
reational, aesthetic, scientific and professional pursuits,” and
attesting to “eighteen separate logging projects,” all cate
gorically excluded, proposed for one such forest tract).
These allegations and affidavits more than adequately
show a “realistic threat” of injury to plaintiffs brought about
by reoccurrence of the challenged conduct—conduct that the
Forest Service thinks lawful and admits will reoccur. Many
years ago the Ninth Circuit warned that a court should not
“be blind to what must be necessarily known to every intelli
gent person.” In re Wo Lee, 26 F. 471, 475 (1886). Apply
ing that standard, I would find standing here.
* * *
I recognize that the Government raises other claims and
bases upon which to deny standing or to hold that the case
is not ripe for adjudication. I believe that these arguments
are without merit. But because the majority does not dis
cuss them here, I shall not do so either.
With respect, I dissent.