UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 19, 2008
CALIFORNIA FORESTRY ASSOCIATION AND AMERICAN FOREST & PAPER ASSOCIATION, PLAINTIFF,
GAIL KIMBELL,*FN1 CHIEF, UNITED STATES FOREST SERVICE; MIKE JOHANNS, SECRETARY UNITED STATES DEPARTMENT OF AGRICULTURE; JACK A.BLACKWELL, REGIONAL FORESTER, PACIFIC SOUTHWEST REGION, DEFENDANTS. AND SIERRA NEVADA FOREST PROTECTION CAMPAIGN, ET AL., INTERVENOR-DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
On September 24 2008, this Court denied Plaintiffs' Motion for Summary Judgment, except to the limited extent that the Court, in reliance on the Ninth Circuit's decision in Sierra Forest Legacy v. Rey, 526 F.3d 1228, 1231-32 (9th Cir. 2008), found that the Forest Service violated the National Environmental Policy Act ("NEPA") by failing to consider a sufficient range of alternatives in adopting the 2004 Framework. Summary adjudication in favor of Plaintiffs was granted on that issue, as set forth in the Second Cause of Action. Correspondingly, the Forest Service's Cross-Motion for Summary Judgment was granted in its entirety except as to the Second Cause of Action.
Given the Court's directive ordering separate briefing as to the question of remedy following its liability findings as set forth above, those issues were briefed by the parties and a hearing set for December 19, 2008.
Plaintiffs have advised the Court that they request no further remedy, and simply ask that the declaratory relief awarded in the Court's September 24, 2008 Memorandum and Order be reduced to judgment. As set forth in the concurrently filed remedy orders entered in the related cases of Sierra Nevada Forest Protection Campaign v. Rey, No. 2:05-cv-00205 MCE-GGH, and People of the State of California v. United States Department of Agriculture, No. 2:05-cv-00211 MCE-GGH, however, counsel for Defendant-Intervenors Quincy Library Group and TuCare, et al. have advised the Court that Petitions for Rehearing have been filed as to the Ninth Circuit's panel decision in Sierra Forest Legacy v. Rey, supra, and that the Ninth Circuit had ordered Plaintiff in that case to respond to those petitions by August 22, 2008.
Although the parties indicate that all papers regarding the rehearing petitions were filed by September 17, 2008, no decision on the petitions have been forthcoming. Accordingly, mandate back to this court under Federal Rule of Appellate Procedure 41(b) has not yet issued.
Given the fact that the appellate decision underlying this Court's finding on behalf of Plaintiffs in this matter remains non-final given the pending rehearing petitions, and in view of recent developments which may form the Ninth Circuit's ultimate decision whether to take the matter en banc, including not only the Ninth Circuit's own subsequent decision in Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008), but also the Supreme Court's even more recent pronouncement in Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008), this Court believes it would be premature to fashion a remedy, and enter any final judgment in this matter, until after the rehearing petitions have been adjudicated and mandate has been formally transferred back to the Court. As counsel for the Intervenor-Defendants have pointed out, any district court proceedings on a remedy while logically antecedent issues remain before an appellate court may ultimately be null and void, and may consequently have to be redone following the issuance of mandate. See Kusay v. United States, 62 F.3d 192, 193-96 (7th Cir. 1995); United States v. Thorp, 655 F.2d 997, 999 (9th Cir. 1981). The Court wishes to avoid any potential waste of judicial resources in that regard and therefore declines to act on the question of remedy before the aforementioned decision in Sierra Forest Legacy v. Rey is final and mandate to this Court has been issued.
If the panel opinion in Rey is vacated, the need for a remedies hearing may be entirely obviated should this Court then determine that the 2004 Framework's consideration of project alternatives was otherwise sufficient.
Plaintiffs are directed to notify the Court once a decision on the rehearing petitions in Rey has been made. At that point, the instant remedies hearing will be rescheduled as necessary.
IT IS SO ORDERED.