OCTOBER TERM, 1997
Syllabus
OHIO FORESTRY ASSOCIATION, INC.
v. SIERRA CLUB ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 97-16. Argued February 25, 1998-Decided May 18, 1998
Pursuant to the National Forest Management Act of 1976 (NFMA),
the United States Forest Service developed a Land and Resource
Management Plan (Plan) for Ohio's Wayne National Forest. Although
the Plan makes logging in the forest more likely-it sets logging
goals, selects the areas suited to timber production, and
determines which probable methods of timber harvest are
appropriate-it does not itself authorize the cutting of any trees.
Before the Service can permit logging, the NFMA and applicable
regulations require it to: (a) propose a particular site and
specific harvesting method, (b) ensure that the project is
consistent with the Plan, (c) provide affected parties with notice
and an opportunity to be heard, (d) conduct an environmental
analysis of the project, and (e) make a final decision to permit
logging, which affected persons may challenge in administrative and
court appeals. Furthermore, the Service must revise the Plan as
appropriate. When the Plan was first proposed, the Sierra Club and
another environmental organization (collectively Sierra Club)
pursued various administrative remedies to bring about the Plan's
modification, and then brought this suit challenging the Plan's
lawfulness on the ground that it permits too much logging and too
much clearcutting. The District Court granted the Forest Service
summary judgment, but the Sixth Circuit reversed. The latter court
found the dispute justiciable because,
inter alia, it was
"ripe for review" and held that the Plan violated the NFMA.
Held: This dispute is not justiciable, because it is not
ripe for court review. Pp.732-739.
(a) In deciding whether an agency decision is ripe, this Court
has examined the fitness of the particular issues for judicial
decision and the hardship to the parties of withholding review.
Abbott Laboratories v.
Gardner, 387 U. S. 136, 149. Such
an examination in this case reveals that the relevant factors,
taken together, foreclose court review. First, withholding review
will not cause the plaintiffs significant "hardship."
Ibid.
The challenged Plan provisions do not create adverse effects of a
strictly legal kind; for example, they do not establish a legal
right to cut trees or abolish any legal authority to object to
trees being cut. Cf.
United States v.
Los Angeles
&
Salt Lake R. Co., 273 U. S. 299,
309-310.
727
Nor would delaying review cause the Sierra Club significant
practical harm. Given the procedural requirements the Service must
observe before it can permit logging, the Sierra Club need not
bring its challenge now, but may await a later time when harm is
more imminent and certain. Cf.
Abbott Laboratories, 387 U.
S., at 152-154. Nor has the Sierra Club pointed to any other way in
which the Plan could now force it to modify its behavior to avoid
future adverse consequences, as, for example, agency regulations
can sometimes force immediate compliance through fear of future
sanctions. Cf.,
e. g., id., at 152-153. Second, court review
now could interfere with the system that Congress specified for the
Forest Service to reach logging decisions. From that agency's
perspective, immediate review could hinder its efforts to refine
its policies through revision of the Plan or application of the
Plan in practice. Cf.,
e. g., id., at 149. Here, the
possibility that further consideration will actually occur before
the Plan is implemented is real, not theoretical. Third, the courts
would benefit from further factual development of the issues. See
Duke Power Co. v.
Carolina Environmental Study Group,
Inc., 438 U. S.
59,82. Review now would require timeconsuming consideration of
the details of an elaborate, technically based Plan, which predicts
consequences that may affect many different parcels of land in a
variety of ways, and which effects themselves may change over time.
That review would have to take place without benefit of the focus
that particular logging proposals could provide. And, depending
upon the agency's future actions to revise the Plan or modify the
expected implementation methods, review now may turn out to have
been unnecessary. See
FTC v.
Standard Oil Co. of
Cal., 449 U. S.
232, 242. Finally, Congress has not specifically provided for
preimplementation judicial review of such plans, unlike certain
agency rules, cf.,
e. g.,
Lujan v.
National
Wildlife Federation, 497 U. S. 871, 891, and
forest plans are unlike environmental impact statements prepared
pursuant to the National Environmental Policy Act of 1969 because
claims involving such statements can never get any riper. Pp.
732-737.
(b) The Court cannot consider the Sierra Club's argument that
the Plan will hurt it immediately in many ways not yet mentioned.
That argument makes its first appearance in this Court in the
briefs on the merits and is, therefore, not fairly presented. Pp.
738-739.
105 F.3d
248, vacated and remanded.
BREYER, J., delivered the opinion for a unanimous Court.
Malcolm L. Stewart argued the cause for the federal
respondents in support of petitioner, under this Court's Rule
728
12.6. With him on the briefs were Solicitor General Waxman,
Assistant Attorney General Schiffer, and Deputy Solicitor General
Kneedler.
Steven P. Quarles argued the cause for petitioner. With him on
the briefs were Clifton S. Elgarten, Thomas R. Lundquist, and
William R. Murray.
Frederick M. Gittes argued the cause for respondents.
With him on the brief were Patti A. Goldman, Todd D. True, and
Alex Levinson. *
JUSTICE BREYER delivered the opinion of the Court.
The Sierra Club challenges the lawfulness of a federal land and
resource management plan adopted by the United States Forest
Service for Ohio's Wayne National Forest on the ground that the
plan permits too much logging and too much clearcutting. We
conclude that the controversy is not yet ripe for judicial
review.
I
The National Forest Management Act of 1976 (NFMA) requires the
Secretary of Agriculture to "develop, maintain, and, as
appropriate, revise land and resource management plans for units of
the National Forest System." 90 Stat. 2949, as renumbered and
amended, 16 U. S. C. § 1604(a). The System itself is vast. It
includes 155 national forests, 20 national grasslands, 8 land
utilization projects, and other lands that together occupy nearly
300,000 square miles of land located in 44 States, Puerto Rico, and
the Virgin Islands. § 1609(a); 36 CFR § 200.1(c)(2) (1997); Office
of the
*Briefs of
amici curiae urging reversal were filed for
the Alabama Forestry Association et al. by
Charles Rothfeld;
for Forest Service Employees for Environmental Ethics et al. by
Michael Axline; for the Pacific Legal Foundation by
Robin
L. Rivett; for the Southeastern Ohio Oil & Gas Association
by
James S.
Huggins and
M. Dale Leeper; and
for the Washington Legal Foundation et al. by
Daniel J.
Popeo and
Richard A. Samp.
William V. Luneburg filed a brief for the Institute for
Fisheries Resources et al. as
amici curiae.
729
Federal Register, United States Government Manual 135
(1997/1998). The National Forest Service, which manages the System,
develops land and resource management plans pursuant to NFMA, and
uses these forest plans to "guide all natural resource management
activities," 36 CFR § 219.1(b) (1997), including use of the land
for "outdoor recreation, range, timber, watershed, wildlife and
fish, and wilderness." 16 U. S. C. § 1604(e)(1). In developing the
plans, the Service must take both environmental and commercial
goals into account. See,
e. g., § 1604(g); 36 CFR § 219.1(a)
(1997).
This case focuses upon a plan that the Forest Service has
developed for the Wayne National Forest located in southern Ohio.
When the Service wrote the plan, the forest consisted of 178,000
federally owned acres (278 sq. mi.) in three forest units that are
interspersed among privately owned lands, some of which the Forest
Service plans to acquire over time. See Land and Resource
Management Plan, Wayne National Forest, United States Department of
Agriculture, Forest Service, Eastern Region (1987) 1-3,3-1, A-13 to
A-17 (hereinafter Plan). The Plan permits logging to take place on
126,000 (197 sq. mi.) of the federally owned acres.
Id., at
4-7, 4-180. At the same time, it sets a ceiling on the total amount
of wood that can be cut-a ceiling that amounts to about 75 million
board feet over 10 years, and which, the Plan projects, would lead
to logging on about 8,000 acres (12.5 sq. mi.) during that decade.
Id., at 4-180. According to the Plan, logging on about 5,000
(7.8 sq. mi.) of those 8,000 acres would involve clearcutting, or
other forms of what the Forest Service calls "even-aged" tree
harvesting.
Id., at 3-5,4-180.
Although the Plan sets logging goals, selects the areas of the
forest that are suited to timber production, 16 U. S. C. § 1604(k),
and determines which "probable methods of timber harvest" are
appropriate, § 1604(f)(2), it does not itself authorize the cutting
of any trees. Before the Forest Service can permit the logging, it
must: (a) propose a specific area in
730
which logging will take place and the harvesting methods to be
used, Plan 4-20 to 4-25; 53 Fed. Reg. 26835-26836 (1988); (b)
ensure that the project is consistent with the Plan, 16 U. S. C. §
1604(i); 36 CFR § 219.10(e) (1997); (c) provide those affected by
proposed logging notice and an opportunity to be heard, 106 Stat.
1419 (note following 16 U. S. C. § 1612); 36 CFR pt. 215, §
217.1(b) (1997); Plan 5-2; (d) conduct an environmental analysis
pursuant to the National Environmental Policy Act of 1969 (NEPA),
42 U. S. C. §4332
et seq.; Plan 4-14, to evaluate the
effects of the specific project and to contemplate alternatives, 40
CFR §§ 1502.14, 1508.9(b) (1997); Plan 1-2; and (e) subsequently
make a final decision to permit logging, which affected persons may
challenge in an administrative appeals process and in court, see
106 Stat. 1419-1420 (note folowing 16 U. S. C. § 1612); 5 U. S. C.
§ 701
et seq. See also 53 Fed. Reg. 26834-26835 (1988); 58
Fed. Reg. 19370-19371 (1993). Furthermore, the statute requires the
Forest Service to "revise" the Plan "as appropriate." 16 U. S. C. §
1604(a). Despite the considerable legal distance between the
adoption of the Plan and the moment when a tree is cut, the Plan's
promulgation nonetheless makes logging more likely in that it is a
logging precondition; in its absence logging could not take place.
See ibid. (requiring promulgation of forest plans); § 1604(i)
(requiring all later forest uses to conform to forest plans).
When the Forest Service first proposed its Plan, the Sierra Club
and the Citizens Council on Conservation and Environmental Control
each objected. In an effort to bring about the Plan's modification,
they (collectively Sierra Club), pursued various administrative
remedies. See Administrative Decision of the Chief of the Forest
Service (Nov. 14, 1990), Pet. for Cert. 66a; Appeal Decision, Wayne
National Forest Land and Resource Management Plan (Jan. 14, 1992),
id., at 78a. The Sierra Club then brought this lawsuit in federal
court, initially against the Chief of the Forest Service, the
Secretary of Agriculture, the Regional Forester, and the
731
Forest Supervisor. The Ohio Forestry Association, some of whose
members harvest timber from the Wayne National Forest or process
wood products obtained from the forest, later intervened as a
defendant.
The Sierra Club's second amended complaint sets forth its legal
claims. That complaint initially states facts that describe the
Plan in detail and allege that erroneous analysis leads the Plan
wrongly to favor logging and clearcutting. Second Amended Complaint
"13-47 (hereinafter Complaint), App. 16-23. The Complaint then sets
forth three claims for relief.
The first claim for relief says that the "defendants in
approving the plan for the Wayne [National Forest] and in directing
or permitting below-cost timber sales accomplished by means of
clearcutting" violated various laws including the NFMA, the NEPA,
and the Administrative Procedure Act. Complaint' 49, id., at
24.
The second claim says that the "defendants' actions in directing
or permitting below-cost timber sales in the Wayne [National
Forest] under the plan violate [their] duties as public trustees."
Complaint' 52, ibid.
The third claim says that, in selecting the amount of the forest
suitable for timber production, the defendants followed regulations
that failed properly to identify "economically unsuitable lands."
Complaint" 54-58, id., at 25-26. It adds that, because the Forest
Service's regulations thereby permitted the Service to place
"economically unsuitable lands" in the category of land where
logging could take place, the regulations violated their
authorizing statute, NFMA, 16 U. S. C. § 1600
et seq., and
were "arbitrary, capricious, an abuse of discretion, and not in
accordance with law," pursuant to the Administrative Procedure Act,
5 U. S. C. § 701
et seq. Complaint' 60, App. 26.
The Complaint finally requests as relief: (a) a declaration that
the Plan "is unlawful as are the below-cost timber sales and
timbering, including clearcutting, authorized by the
732
plan," (b) an "injunction prohibiting the defendants from
permitting or directing further timber harvest and/or below-cost
timber sales" pending Plan revision, (c) costs and attorney's fees,
and (d) "such other further relief as may be appropriate."
Complaint" (a)-(d), id., at 26-27.
The District Court reviewed the Plan, decided that the Forest
Service had acted lawfully in making the various determinations
that the Sierra Club had challenged, and granted summary judgment
for the Forest Service.
Sierra Club v.
Robertson, 845
F. Supp. 485, 503 (SD Ohio 1994). The Sierra Club appealed. The
Court of Appeals for the Sixth Circuit held that the dispute was
justiciable, finding both that the Sierra Club had standing to
bring suit, and that since the suit was "ripe for review," there
was no need to wait "until a site-specific action occurs."
Sierra Club v.
Thomas, 105 F.3d
248, 250 (1997). The Court of Appeals disagreed with the
District Court about the merits. It held that the Plan improperly
favored clearcutting and therefore violated NFMA.
Id., at
251-252. We granted certiorari to determine whether the dispute
about the Plan presents a controversy that is justiciable now, and
if so, whether the Plan conforms to the statutory and regulatory
requirements for a forest plan.
II
Petitioner alleges that this suit is nonjusticiable both because
the Sierra Club lacks standing to bring this case and because the
issues before us-over the Plan's specifications for logging and
clearcutting-are not yet ripe for adjudication. We find that the
dispute is not justiciable, because it is not ripe for court
review. Cf.
Steel Co. v.
Citizens For Better Environment,
ante, at 100-101, n. 3.
As this Court has previously pointed out, the ripeness
requirement is designed
"to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
733
disagreements over administrative policies, and also to protect
the agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete way
by the challenging parties." Abbott Laboratories v.
Gardner, 387
U. S. 136, 148-149 (1967).
In deciding whether an agency's decision is, or is not, ripe for
judicial review, the Court has examined both the "fitness of the
issues for judicial decision" and the "hardship to the parties of
withholding court consideration."
Id., at 149. To do so in
this case, we must consider: (1) whether delayed review would cause
hardship to the plaintiffs; (2) whether judicial intervention would
inappropriately interfere with further administrative action; and
(3) whether the courts would benefit from further factual
development of the issues presented. These considerations, taken
together, foreclose review in the present case.
First, to "withhol[d] court consideration" at present will not
cause the parties significant "hardship" as this Court has come to
use that term.
Ibid. For one thing, the provisions of the
Plan that the Sierra Club challenges do not create adverse effects
of a strictly legal kind, that is, effects of a sort that
traditionally would have qualified as harm. To paraphrase this
Court's language in
United States v.
Los Angeles
&
Salt Lake R. Co., 273 U. S. 299, 309-310
(1927) (opinion of Brandeis, J.), they do not command anyone to do
anything or to refrain from doing anything; they do not grant,
withhold, or modify any formal legal license, power, or authority;
they do not subject anyone to any civil or criminal liability; they
create no legal rights or obligations. Thus, for example, the Plan
does not give anyone a legal right to cut trees, nor does it
abolish anyone's legal authority to object to trees being cut.
Nor have we found that the Plan now inflicts significant
practical harm upon the interests that the Sierra Club advances-an
important consideration in light of this Court's
734
modern ripeness cases. See,
e. g., Abbott Laboratories,
supra, at 152-154. As we have pointed out, before the Forest
Service can permit logging, it must focus upon a particular site,
propose a specific harvesting method, prepare an environmental
review, permit the public an opportunity to be heard, and (if
challenged) justify the proposal in court.
Supra, at
729-730. The Sierra Club thus will have ample opportunity later to
bring its legal challenge at a time when harm is more imminent and
more certain. Any such later challenge might also include a
challenge to the lawfulness of the present Plan if (but only if)
the present Plan then matters, i.
e., if the Plan plays a
causal role with respect to the future, then-imminent, harm from
logging. Hence we do not find a strong reason why the Sierra Club
must bring its challenge now in order to get relief. Cf.
Abbott
Laboratories, supra, at 152.
Nor has the Sierra Club pointed to any other way in which the
Plan could now force it to modify its behavior in order to avoid
future adverse consequences, as, for example, agency regulations
can sometimes force immediate compliance through fear of future
sanctions. Cf.
Abbott Laboratories, supra, at 152-153
(finding challenge ripe where plaintiffs must comply with Federal
Drug Administration labeling rule at once and incur substantial
economic costs or risk later serious criminal and civil penalties
for unlawful drug distribution);
Columbia Broadcasting System,
Inc. v.
United States, 316 U. S. 407, 417-419
(1942) (finding challenge ripe where plaintiffs must comply with
burdensome Federal Communications Commission rule at once or risk
later loss of license and consequent serious harm).
The Sierra Club does say that it will be easier, and certainly
cheaper, to mount one legal challenge against the Plan now, than to
pursue many challenges to each site-specific logging decision to
which the Plan might eventually lead. It does not explain, however,
why one initial site-specific victory (if based on the Plan's
unlawfulness) could not, through
735
preclusion principles, effectively carry the day. See
Lujan v.
National Wildlife Federation, 497 U. S. 871, 894
(1990). And, in any event, the Court has not considered this kind
of litigation cost saving sufficient by itself to justify review in
a case that would otherwise be unripe. The ripeness doctrine
reflects a judgment that the disadvantages of a premature review
that may prove too abstract or unnecessary ordinarily outweigh the
additional costs of-even repetitivepostimplementation litigation.
See,
e. g., ibid. ("The caseby-case approach ... is
understandably frustrating to an organization such as respondent,
which has as its objective across-the-board protection of our
Nation's ... forests .... But this is the traditional, and remains
the normal, mode of operation of the courts");
FTC v.
Standard Oil Co. of Cal., 449 U. S. 232, 244
(1980);
Renegotiation Bd. v.
Bannercraft Clothing
Co., 415 U. S.
1, 24 (1974);
Petroleum Exploration, Inc. v.
Public
Servo Comm'n, 304
U. S. 209, 222 (1938).
Second, from the agency's perspective, immediate judicial review
directed at the lawfulness of logging and clearcutting could hinder
agency efforts to refine its policies: (a) through revision of the
Plan,
e. g., in response to an appropriate proposed
site-specific action that is inconsistent with the Plan, see 53
Fed. Reg. 23807, 26836 (1988), or (b) through application of the
Plan in practice,
e. g., in the form of site-specific
proposals, which are subject to review by a court applying purely
legal criteria. Cf.
Abbott Laboratories, supra, at
149;
Pacific Gas &
Elec. Co. v.
State Energy Resources
Conservation and Development Comm'n, 461 U. S. 190, 201
(1983). Cf.
Standard Oil Co., supra, at 242 (premature
review "denies the agency an opportunity to correct its own
mistakes and to apply its expertise"). And, here, the possibility
that further consideration will actually occur before the Plan is
implemented is not theoretical, but real. See,
e. g., 60
Fed. Reg. 18886, 18901 (1995) (forest plans often not fully
implemented), id., at 18905-18907 (discussing process for amending
forest plans); 58 Fed. Reg. 19369, 19370-19371
736
(1993) (citing administrative appeals indicating that plans are
merely programmatic in nature and that plan cannot foresee all
effects on forest); Appeal Nos. 92-09-11-0008, 92-09-110009
(Lodging II) (successful Sierra Club administrative appeals against
Wayne timber harvesting site-specific projects). Hearing the Sierra
Club's challenge now could thus interfere with the system that
Congress specified for the agency to reach forest logging
decisions.
Third, from the courts' perspective, review of the Sierra Club's
claims regarding logging and clearcutting now would require
time-consuming judicial consideration of the details of an
elaborate, technically based plan, which predicts consequences that
may affect many different parcels of land in a variety of ways, and
which effects themselves may change over time. That review would
have to take place without benefit of the focus that a particular
logging proposal could provide. Thus, for example, the court below
in evaluating the Sierra Club's claims had to focus upon whether
the Plan as a whole was "improperly skewed," rather than focus upon
whether the decision to allow clearcutting on a particular site was
improper, say, because the site was better suited to another use or
logging there would cumulatively result in too many trees being
cut. See 105 F. 3d, at 250-251. And, of course, depending upon the
agency's future actions to revise the Plan or modify the expected
methods of implementation, review now may turn out to have been
unnecessary. See
Standard Oil Co., supra, at 242.
This type of review threatens the kind of "abstract
disagreements over administrative policies,"
Abbott
Laboratories, 387 U. S., at 148, that the ripeness doctrine
seeks to avoid. In this case, for example, the Court of Appeals
panel disagreed about whether or not the Forest Service suffered
from a kind of general "bias" in favor of timber production and
clearcutting. Review where the consequences had been "reduced to
more manageable proportions," and where the
737
"factual components [were] fleshed out, by some concrete action"
might have led the panel majority either to demonstrate that bias
and its consequences through record citation (which it did not do)
or to abandon the claim.
National Wildlife Federation,
supra, at 891. All this is to say that further factual
development would "significantly advance our ability to deal with
the legal issues presented" and would "aid us in their resolution."
Duke Power Co. v.
Carolina Environmental Study Group,
Inc., 438 U. S.
59, 82 (1978).
Finally, Congress has not provided for preimplementation
judicial review of forest plans. Those plans are tools for agency
planning and management. The Plan is consequently unlike agency
rules that Congress has specifically instructed the courts to
review "pre-enforcement." Cf.
National Wildlife Federation,
supra, at 891; 15 U. S. C. § 2618 (Toxic Substances Control Act)
(providing preenforcement review of agency action); 30 U. S. C. §
1276(a) (Surface Mining Control and Reclamation Act of 1977)
(same); 42 U. S. C. § 6976 (Resource Conservation and Recovery Act
of 1976) (same); § 7607(b) (Clean Air Act) (same); 43 U. S. C. §
1349(c)(3) (Outer Continental Shelf Lands Act);
Harrison v.
PPG Industries, Inc., 446 U. S. 578, 592-593
(1980). Nor does the Plan, which through standards guides future
use of forests, resemble an environmental impact statement prepared
pursuant to NEPA. That is because in this respect NEPA, unlike the
NFMA, simply guarantees a particular procedure, not a particular
result. Compare 16 U. S. C. § 1604(e) (requiring that forest plans
provide for multiple coordinated
use of forests, including
timber and wilderness) with 42 U. S. C. § 4332 (requiring that
agencies prepare environmental impact statements where major agency
action would significantly affect the environment). Hence a person
with standing who is injured by a failure to comply with the NEPA
procedure may complain of that failure at the time the failure
takes place, for the claim can never get riper.
738
III
The Sierra Club makes one further important contrary argument.
It says that the Plan will hurt it in many ways that we have not
yet mentioned. Specifically, the Sierra Club says that the Plan
will permit "many intrusive activities, such as opening trails to
motorcycles or using heavy machinery," which "will go forward
without any additional consideration of their impact on wilderness
recreation." Brief for Respondents 34. At the same time, in areas
designated for logging, "affirmative measures to promote
undisturbed backcountry recreation, such as closing roads and
building additional hiking trails," will not take place.
Ibid. These are harms, says the Sierra Club, that will not
take place at a distant future time. Rather, they will take place
now.
This argument suffers from the legally fatal problem that it
makes its first appearance here in this Court in the briefs on the
merits. The Complaint, fairly read, does not include such claims.
Instead, it focuses on the amount and method of timber harvesting.
The Sierra Club has not referred us to any other court documents in
which it protests the Plan's approval of motorcycles or machinery,
the Plan's failure to close roads or to provide for the building of
trails, or other disruptions that the Plan might cause those who
use the forest for hiking. As far as we can tell, prior to the
argument on the merits here, the harm to which the Sierra Club
objected consisted of too much, and the wrong kind of, logging.
The matter is significant because the Government concedes that
if the Sierra Club had previously raised these other kinds of harm,
the ripeness analysis in this case with respect to those provisions
of the Plan that produce the harm would be significantly different.
The Government's brief in the Court of Appeals said:
"If, for example, a plan incorporated a final decision to close
a specific area to off-road vehicles, the plan itself
739
could result in imminent concrete injury to a party with an
interest in the use of off-road vehicles in that area." Brief for
Federal Appellees in No. 94-3407 (CA6), p. 20.
And, at oral argument, the Solicitor General agreed that if the
Sierra Club's claim was that the "plan was allowing motorcycles
into a bird-watching area or something [like that], that would be
immediately justiciable." Tr. of Oral Arg. 5. Thus, we believe
these other claims that the Sierra Club now raises are not fairly
presented here, and we cannot consider them.
IV
For these reasons, we find the respondents' suit not ripe for
review. We vacate the judgment of the Court of Appeals, and we
remand this case with instructions to dismiss.
It is so ordered.
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