|Posted by nationalforestlawblog on May 31, 2011 at 10:23 AM|
The 9th Circuit Court of Appeals has issued a 4-part decision rejecting legal challenges to the Sierra Nevada Forest Plan by environmentals. The State of California, the Sierra Forest Legacy, the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club and the Wilderness Society claim that the Forest Service violated NEPA both by failing to consider short-term impacts of the 2004 Framework and by failing to disclose and rebut expert opposition. Sierra Forest separately contends that the Forest Service violated NEPA when approving the Basin Project by failing to analyze cumulative impacts to sensitive species. Sierra Forest also argues that the 2004 Framework violates NFMA by failing to maintain viable populations of old forest wildlife.
Writing for the Court, Judge Fisher explained that the the Framework SEIS adequately addressed short-term impacts to old forest wildlife and disclosed and rebutted public opposition. Similarly, the court held that the Forest Service did not violate NEPA when approving the Basin Project because the Forest Service adequately addressed cumulative impacts of the proposed management action. However, the court did find one minor NEPA violation where the Forest Service failed to update the alternatives from the 2001 Framework SEIS to reflect new modeling techniques used in the 2004 Framework SEIS.
However, because of a split on the rationale for the holdings, the court remanded the case back to the district court. Specifically, Judge Reinhardt's narrow ruling controlled. He held that the Forest Service lacks power retroactively to amend forest plans, so the 2007 Amendment to the 2004 Framework did not change the population monitoring requirements for management indicator species applicable to the Basin Project. Therefore the court remanded for the district court to determine in the first instance whether, when it approved the Project, the Forest Service had complied with the 2004 Framework’s population monitoring requirements.
Meanwhile, Judge Noonan issued a dissenting opinion for the reasons explained in his concurrencein Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1024-26 (9th Cir. 2009) (Noonan, J., concurring).
You can access the full court's opinion here.