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Sierra Forest Legacy; Center For Biological Diversity v. Harris Sherman

May 26, 2011

SIERRA FOREST LEGACY; CENTER FOR BIOLOGICAL DIVERSITY; NATURAL RESOURCES DEFENSE COUNCIL;
SIERRA CLUB; THE WILDERNESS SOCIETY, INC., PLAINTIFFS-APPELLANTS
v.
HARRIS SHERMAN, IN HIS OFFICIAL
CAPACITY AS UNDER SECRETARY FOR NATURAL RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE; TOM TIDWELL, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE U.S. FOREST SERVICE; RANDY MOORE, IN HIS OFFICIAL CAPACITY AS REGIONAL FORESTER, U.S. FOREST SERVICE REGION 5; ALICE CARLTON, IN HER OFFICIAL CAPACITY AS FOREST SUPERVISOR, PLUMAS NATIONAL FOREST; QUINCY LIBRARY GROUP, DEFENDANTS-APPELLEES, AMERICAN FOREST & PAPER ASSOCIATION; AMERICAN FOREST RESOURCE COUNCIL; BLUERIBBON COALITION; CALIFORNIA EQUESTRIAN TRAILS & LANDS COALITION;
CALIFORNIA FOREST COUNTIES SCHOOLS COALITION; CALIFORNIA FORESTRY ASSOCIATION; CALIFORNIA LICENSED FORESTERS ASSOCIATION;
CALIFORNIA/ NEVADA SNOWMOBILE ASSOCIATION; COARSEGOLD RESOURCE CONSERVATION DISTRICT;
HUNTINGTON LAKE ASSOCIATION; HUNTINGTON LAKE BIG CREEK HISTORICAL CONSERVANCY; KLAMATH ALLIANCE FOR RESOURCES & ENVIRONMENT; REGIONAL COUNCIL OF RURAL COUNTIES; SIERRA RESOURCE CONSERVATION DISTRICT;
STRAWBERRY PROPERTY OWNER'S ASSOCIATION; TULARE COUNTY RESOURCE CONSERVATION DISTRICT;
TUOLUMNE COUNTY ALLIANCE FOR RESOURCES & ENVIRONMENT; WESTERN COUNCIL OF INDUSTRIAL WORKERS; CALIFORNIA CATTLEMEN'S ASSOCIATION, DEFENDANTS-INTERVENORS-APPELLEES. PEOPLE OF THE STATE OF CALIFORNIA, PLAINTIFF-APPELLANT,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE; TOM VILSAK, SECRETARY, DEPARTMENT OF AGRICULTURE; HARRIS SHERMAN, UNDER SECRETARY FOR NATURAL RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; TOM TIDWELL, CHIEF, U.S. FOREST SERVICE; RANDY MOORE, REGIONAL FORESTER, PACIFIC SOUTHWEST REGION, U.S. FOREST SERVICE, DEFENDANTS-APPELLEES, QUINCY LIBRARY GROUP; AMERICAN FOREST & PAPER ASSOCIATION; AMERICAN FOREST RESOURCE COUNCIL; BLUERIBBON COALITION; CALIFORNIA EQUESTRIAN TRAILS & LANDS COALITION; CALIFORNIA FOREST COUNTIES SCHOOLS COALITION;
CALIFORNIA LICENSED FORESTERS ASSOCIATION; CALIFORNIA/NEVADA SNOWMOBILE ASSOCIATION;
COARSEGOLD RESOURCE CONSERVATION DISTRICT; HUNTINGTON LAKE ASSOCIATION; HUNTINGTON LAKE BIG CREEK HISTORICAL CONSERVANCY; KLAMATH ALLIANCE FOR RESOURCES & ENVIRONMENT; REGIONAL COUNCIL OF RURAL COUNTIES; SIERRA RESOURCE CONSERVATION DISTRICT; STRAWBERRY PROPERTY OWNERS' ASSOCIATION; TULARE COUNTY RESOURCE CONSERVATION DISTRICT; TUOLUMNE COUNTY ALLIANCE FOR RESOURCES & ENVIRONMENT;
WESTERN COUNCIL OF INDUSTRIAL WORKERS; CALIFORNIA FORESTY ASSOCIATION; CALIFORNIA CATTLEMEN'S ASSOCIATION, DEFENDANTS-INTERVENORS-APPELLEES.



Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding D.C. No. 2:05-cv-00205-MCE-GGH; D.C. No.2:05-cv-00211-MCE-GGH ; 2:05-cv-00205-MCE-GGH; 2:05-cv-00905-MCE-GGH

Per curiam.

FOR PUBLICATION

OPINION

Argued and Submitted July 8, 2010-Pasadena, California

Before: Stephen Reinhardt, John T. Noonan, Jr. and Raymond C. Fisher, Circuit Judges.

Per Curiam Introduction; Section I-VI by Judge Fisher; Section VII by Judge Reinhardt; Judge Fisher Dissenting in Part; Judge Noonan Concurring in Part and Dissenting in Part

OPINION

This appeal concerns whether the process of establishing management guidelines governing 11.5 million acres of federal land in the Sierra Nevada region complied with both the procedural requirements of the National Environmental Policy Act (NEPA) and the substantive restrictions of the National Forest Management Act (NFMA). Sierra Forest Legacy, the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club and the Wilderness Society (collectively "Sierra Forest") appeal a largely unfavorable summary judgment against them and a favorable but limited remedial order in their NEPA and NFMA suit challenging the 2004 Sierra Nevada Forest Plan Amendment ("the 2004 Framework") and the Basin Project, a timber harvesting project approved under the 2004 Framework. The State of California also appeals a summary judgment against it and a limited remedial order in a related NEPA action. The district court found that the U.S. Forest Service and related federal defendants (collectively "the Forest Service") violated NEPA by failing to consider alternative actions using the same modeling techniques and management priorities, but the court rejected several other NEPA and NFMA claims. The district court ordered the Forest Service to prepare a supplemental environmental impact statement (SEIS) to remedy the NEPA error and denied Sierra Forest and California's requests to enjoin implementation of the 2004 Framework in the interim.

Sierra Forest and California argue 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. Sierra Forest further argues that the Basin Project specifically violates NFMA by failing to comply with the 2004 Framework's management indicator species monitoring requirement, despite a 2007 Amendment to the 2004 Framework that purports retroactively to eliminate the monitoring requirement. Both Sierra Forest and California also contend that the district court abused its discretion when considering the equitable factors governing entry of a permanent injunction. The Forest Service and numerous intervenors contest these assertions and assert several procedural bars to relief.

For the reasons that follow, a majority affirms the district court's decision on the merits of Sierra Forest and California's NEPA claim. Specifically, we hold that Sierra Forest and California have standing to assert a facial NEPA claim against the 2004 Framework but that the Framework SEIS adequately addressed short-term impacts to old forest wildlife and disclosed and rebutted public opposition. Similarly, we hold 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. And we hold that the Forest Service violated NEPA by failing to update the alternatives from the 2001 Framework SEIS to reflect new modeling techniques used in the 2004 Framework SEIS. We vacate, however, the district court's orders granting a limited remedy and remand for reconsideration of the equities of a "substantive" injunction without giving undue deference to government experts. Judge Noonan dissents for the reasons explained in his concurrence in Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1024-26 (9th Cir. 2009) (Noonan, J., concurring).

We remand also because we reverse the district court's decision on Sierra Forest's NFMA claim. A majority agrees to reverse, but for differing reasons. Judge Fisher would affirm. Judges Reinhardt and Noonan would reverse. Judge Noonan would reverse for the reasons stated in his previous concurrence in Rey. Judge Reinhardt's holding is narrower, and therefore controls the disposition of this case.*fn1

Judge Reinhardt holds 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. We therefore remand 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. The district court should consider the 2004 Framework's requirements as they were at the time the Project was approved, not as the Forest Service represented them to be following the 2007 Amendment. Sierra Forest's challenge to the 2004 Framework itself is not presently ripe for judicial consideration because the district court has yet to consider whether the Basin Project complied with the 2004 Framework as it existed at the time of the Project's approval. Until the district court decides whether the Project complies with the 2004 Framework without the 2007 Amendment, it should not consider Sierra Forest's facial challenge to that Framework.

Judge Fisher would affirm the district court on the NFMA claim. He would hold that the Forest Service had power retroactively to amend the 2004 Framework and thus that the species monitoring claim related to the Basin Project is moot. Having concluded that the Basin Project complied with the amended 2004 Framework, Judge Fisher would hold Sierra Forest's NFMA challenge to the 2004 Framework is ripe, as applied in the Basin Project. He would further hold, however, that the adaptive management provisions of the 2004 Framework applied in the Basin Project do not violate NFMA.

There are thus four separate opinions in this case. First, a NEPA opinion written by Judge Fisher and joined by Judge Reinhardt appears as Parts I-VI of the decision. Second, a NFMA opinion written by Judge Reinhardt appears as Part VII. Third, a dissent by Judge Fisher on the NFMA issue follows Part VII. Fourth, an opinion by Judge Noonan concurring in the result on the NFMA issue, and dissenting from the NEPA opinion, concludes the decision.

FISHER, Circuit Judge:

I. Background

A. The 2004 Framework

In January 2001, the U.S. Forest Service completed the Sierra Nevada Forest Plan Amendment and an accompanying Rule of Decision (collectively "the 2001 Framework"), the conclusion of a 10-year comprehensive review process. The 2001 Framework significantly altered guidelines for management of 10 national forests and one management unit, which collectively include 11.5 million acres in the Sierra Nevada region of California. The 2001 Framework restricted logging based on overlapping guidelines concerning tree size, canopy closure and the presence of sensitive species including the California spotted owl, the northern goshawk (a bird of prey), the Pacific fisher (a small carnivorous mammal), the pine marten (another small carnivorous mammal), the willow fly-catcher (a small bird) and the Yosemite toad. Less than a year later, the Forest Service began a review of the 2001 Framework to address six new policy priorities: fuel treatments, compatibility with the National Fire Plan, implementation of pilot projects outlined in the Herger-Feinstein Quincy Library Group Forest Recovery Act, 16 U.S.C. § 2104 note (HFQLG Act), impact on grazing permit holders, impact on recreational users and impact on local communities.

In 2003, the Forest Service released a draft SEIS explaining proposed changes to the 2001 Framework. The Forest Service sought internal review from both its Watershed, Fish, Wild-life, Air and Rare Plants staff and a science consistency review team, as well as interagency review from the Environmental Protection Agency and Fish and Wildlife Service. The State of California also submitted comments on the draft SEIS. The Forest Service received over 50,000 public comments, including approximately 1,300 individual letters. Numerous experts presented vigorous critiques of the plan for its lack of emphasis on species preservation and purported assumptions concerning fire ecology.

In 2004, the Forest Service released the 2004 Sierra Nevada Forest Plan Amendment and final SEIS. The 2004 Framework significantly liberalizes management restrictions, most notably by emphasizing mechanical thinning over controlled burns and increasing the maximum size of trees subject to logging from either six or 20 inches diameter at breast height to 30 inches, subject to minimum canopy retention levels and maintenance of specified percentages of existing tree volume. The 2004 Framework maintains specific protections for California spotted owls both in protected activity centers around nests and in home range core areas. On the other hand, the 2004 Framework permits broad implementation of the HFQLG Act, which loosens logging restrictions in specified areas in order to experiment with fire suppression techniques such as Community Defense Zones and Defensible Fuel Profile Zones. Finally, the 2004 Framework alters grazing limitations to permit pasture use outside of breeding periods in areas known to contain willow flycatchers - a small bird - and Yosemite toads and would allow for site-specific waivers of any limitation subject to development of local management plans. The SEIS included over 130 pages of responses to public comments.

After the Regional Forester decided to select the 2004 Framework, members of the public submitted 6,241 administrative appeals. The Chief of the Forest Service denied the appeals, with instructions that the regional forester provide supplemental information concerning adaptive monitoring, a system under which the Forest Service will continuously assess the effects of management on sensitive species and adjust practices accordingly. The Under Secretary for Natural Resources and the Environment affirmed the appeal decision a few months later.

B. Basin Project

Also in 2004, the Forest Service released an environmental assessment (EA) for the Basin Project, a timber harvesting project designed to implement the 2004 Framework. The Basin Project would harvest timber in a 40,000-acre area of the Plumas National Forest, including limited individual tree selection and group selection (removal of most trees in one-half- to two-acre clusters). The EA notes both direct and cumulative effects on the California spotted owl, northern goshawk, willow flycatcher and forest carnivores and concludes that "none of [the Basin Project's] anticipated direct, indirect, or cumulative effects, considering both context and intensity, is expected to constitute a significant environmental effect, as that term is defined in the NEPA regulations." (Emphasis in original.)

C. Procedural History

Sierra Forest Legacy, the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club and the Wilderness Society are membership organizations dedicated to the protection and restoration of the environment. Their individual members use and enjoy the Sierra Nevada mountains, including searching for and observing rare wild-life. The State of California contains numerous national forests and owns large tracts of land in the Sierra Nevada region.

Sierra Forest and California filed separate actions in 2005, both challenging the adequacy of the 2004 Framework under NEPA. Sierra Forest additionally asserted violations of NFMA and attacked specific projects. The federal government moved to dismiss California's complaint for lack of standing, and the district court granted the motion with leave to file an amended complaint. See California ex rel. Lockyer v. U.S. Dep't of Agric., No. 2:05-cv-0211, 2005 WL 1719892 (E.D. Cal. July 18, 2005) ("California v. USDA I"). California filed an amended complaint soon thereafter, and the Forest Service did not renew its motion to dismiss. The district court granted numerous entities defendant-intervenor status in both cases, including the Quincy Library Group, the American Forest and Paper Association and the California Cattlemen's Association.

The parties in both suits cross-moved for summary judgment. While the motions remained pending, Sierra Forest filed a motion for a preliminary injunction against implementation of the 2004 Framework in three specific projects, which the district court denied from the bench. See Sierra Nevada Forest Protection Campaign v. Rey, No. 2:05-cv-0205, 2007 WL 3034931, at *1 (E.D. Cal. Oct. 16, 2007) ("Sierra Forest I"), rev'd sub nom. Sierra Forest Legacy v. Rey, 577 F.3d 1015 (9th Cir. 2009). In a subsequent written opinion, the district court found that Sierra Forest was unlikely to succeed on the merits of its claims, that the three specific projects Sierra Forest sought to enjoin were unlikely to harm forests or species irreparably and that the balance of hardships and public interest favored permitting the government to carry out logging. See id. at *7-*11.

On appeal, we reversed and remanded. See Sierra Forest Legacy v. Rey, 526 F.3d 1228 (9th Cir. 2008) ("Sierra Forest II"), withdrawn and superseded, 577 F.3d 1015 (9th Cir. 2009). Specifically, we held that the district court had abused its discretion by concluding that "[the Forest Service] complied with NEPA's requirement to '[r]igorously explore and objectively evaluate all reasonable alternatives.' " Id. at 1233 (quoting 40 C.F.R. § 1502.14(a) (2000)). We additionally concluded that at an interim stage the equities favored Sierra Forest and instructed the district court "to grant immediately a preliminary injunction on the three proposed projects to the extent that they are inconsistent with the 2001 [Framework]." Id. at 1233-34.

In response to a petition for panel rehearing and the Supreme Court's opinion in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008), we withdrew Sierra Forest II and issued a superseding opinion. See Sierra Forest Legacy v. Rey, 577 F.3d 1015 (9th Cir. 2009) ("Sierra Forest IV"). We reiterated that Sierra Forest was likely to succeed on the merits of its NEPA claim and specified that the Forest Service had introduced new management objectives and modeling techniques in the 2004 SEIS without applying them to the full range of alternatives. See id. at 1021-22. We then remanded for application of proper legal standards in the first instance and expressed " 'no opinion as to whether an injunction should issue.' " Id. at 1024 (quoting Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 939 (9th Cir. 1987)).

After we decided Sierra Forest II but before we granted the Forest Service's petition for review and issued Sierra Forest IV, the district court resolved the parties' cross-motions for summary judgment. See Sierra Nevada Forest Protection Campaign v. Rey, 573 F. Supp. 2d 1316 (E.D. Cal. 2008) ("Sierra Forest III"); California ex rel. Lockyer v. U.S. Dep't of Agric., No. 2:05-cv-0211, 2008 WL 3863479 (E.D. Cal. Sept. 3, 2008) ("California v. USDA II"). In both cases, the district court granted summary judgment in favor of defendants, with the exception of the NEPA alternatives claim, on which it granted summary judgment in favor of the plaintiffs. See Sierra Forest III, 573 F. Supp. 2d at 1353; California v. USDA II, 2008 WL 3863479, at *28.

In Sierra Forest III, the district court first found that the 1982 regulations implementing NFMA, rather than the 2005 regulations, applied to the 2004 Framework and that the NFMA claim was ripe for adjudication "to the extent its provisions are implicated within [Sierra Forest's] challenge to the site-specific Basin Project." 573 F. Supp. 2d at 1327-29. However, on the merits the court found that the Forest Service "did not act arbitrarily or capriciously in finding that the [Basin] Project would maintain species viability concurrently with meeting other multiple-use objectives." Id. at 1333.

The district court also found no NFMA violation due to the lack of monitoring, concluding that monitoring requirements under NFMA regulations did not dictate the particular requirements contained in the 2004 Framework and that those requirements had been removed by the 2007 Amendment to the 2004 Framework. See id. at 1333-1337. The district court similarly denied Sierra Forest's NEPA claims, finding that "the SEIS does recognize the importance of addressing short term impacts," which were further mitigated by adaptive management strategies, id. at 1338-42, and that the SEIS considered opposing scientific viewpoints and acknowledged scientific uncertainty, see id. at 1342-45. The court also found that the Forest Service did not act arbitrarily in violation of NEPA by concentrating its 2004 Framework cumulative effects analysis on projected reductions in stand-replacing fires resulting from intensified management or by relying on the 2004 Framework cumulative effects analysis in the Basin EA. See id. at 1346-47, 1352-53. The district court next found that the Forest Service permitted adequate public participation, as required by NEPA, when preparing the Basin EA. See id. at 1348-51. Finally, the district court found that the Forest Service did violate NEPA by failing to consider an adequate range of alternatives, because the Forest Service had not updated alternatives set out in the 2001 Framework SEIS to reflect new modeling techniques used in the 2004 Framework SEIS. See id. at 1347-48.

In California v. USDA II, the district court first concluded that the State had standing to challenge the 2004 Framework based on its " 'responsibilities, powers, and assets' " concerning "wildlife, water, state-owned land, and public trust lands in and around the Sierra Nevada." 2008 WL 3863479, at *5-*6 (quoting City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir. 2004)). The court then rejected California's broad Administrative Procedure Act challenge, finding that the Forest Service had adequately articulated " 'reasoned analysis' in adopting the provisions of the 2004 Framework" concerning fuels management, California spotted owl impacts and grazing. Id. at *6-*13 (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983)). The district court next found that the Forest Service had undertaken the analysis required by NEPA concerning old forest conditions and species including the California spotted owl, willow flycatcher and Yosemite toad. See id. at *14-*23. The court also found that the Forest Service had adequately considered opposing scientific viewpoints and uncertainty and had explained the concept and utility of adaptive management. See id. at *23-*27. Again, however, the district court found that the Forest Service did violate NEPA by failing to consider an adequate range of alternatives that all relied on the same modeling techniques. See id. at *27-*28.

In a separate opinion addressing both cases, the district court granted a limited remedy for inadequacies in the NEPA alternatives analysis. See Sierra Forest Legacy v. Rey, 670 F. Supp. 2d 1106 (E.D. Cal. 2009) ("Sierra Forest V"). Rejecting Sierra Forest's and California's requests to enjoin implementation of the 2004 Framework, the court first found that it lacked jurisdiction to impose a "substantive" injunction for a "procedural" NEPA violation. Id. at 1110-11. The district court also found that traditional injunction standards - specifically the public interest and the balance of hardships - did not favor an injunction setting aside the 2004 Framework. See id. at 1111-13. Rather, the court ordered the Forest Service "to prepare another supplemental EIS on the [2004] Framework, one that meets the range of alternatives and analytical consistency identified by the Ninth Circuit in its decision on the preliminary injunction portion of this case" by May 1, 2010. Id. at 1113.

The district court entered judgment, and Sierra Forest and California timely appealed. The Forest Service also entered a notice of appeal in Sierra Forest's appeal, but we granted the Forest Service's subsequent motion for voluntary dismissal. See Order, Sierra Forest Legacy v. Sherman, No. 10-15376 (9th Cir. May 10, 2010).

Sierra Forest moved for an injunction pending appeal, which the district court denied. See Sierra Forest Legacy v. Rey, 691 F. Supp. 2d 1204, 1207-14 (E.D. Cal. 2010) ("Sierra Forest VI"). However, the district court granted Sierra Forest's unopposed request to delay completion of a SEIS integrating new alternatives analysis until after resolution of the merits appeal. See id. at 1214. Sierra Forest then requested that we enjoin implementation of the 2004 Framework pending appeal. We denied the motion with leave to refile because Sierra Forest had presented no evidence that ground would be broken in projects named in its complaint - Empire, Basin and Slapjack - during the pendency of its appeal. See Order, Sierra Forest Legacy v. Sherman, No. 09-17796 (9th Cir. Apr. 29, 2010). After argument Sierra Forest filed another motion for an injunction pending appeal, presenting evidence that logging was imminent in Empire, Basin and Slapjack. We granted the motion in part and enjoined logging in those three projects "that is inconsistent with the 2001 Framework, except such logging as may occur within the wildland urban intermix defense and threat zones, as defined in the" 2004 Framework SEIS. Order, Sierra Forest Legacy v. Sherman, No. 09-17796 (9th Cir. July 23, 2010). That injunction remains in place.

II. Jurisdiction

The district court had jurisdiction over Sierra Forest Legacy v. Rey under 28 U.S.C. § 1331 and entered judgment on December 18, 2009. Sierra Forest filed a notice of appeal two weeks before judgment, which we "treat[ ] as filed on the date of and after the entry" of judgment. Fed. R. App. P. 4(a)(2). The district court had jurisdiction over California v. U.S. Department of Agriculture under 28 U.S.C. § 1331 and entered judgment on December 7, 2009. California filed a timely notice of appeal.

The Forest Service contends that we nevertheless lack jurisdiction because the orders from which Sierra Forest and California appeal are not final. The district court ordered an agency remand for the Forest Service to prepare another SEIS to correct defects in the NEPA alternatives analysis, and an agency remand is ordinarily final only for purposes of a government appeal. See Alsea Valley Alliance v. Dep't of Commerce, 358 F.3d 1181, 1184 (9th Cir. 2004). Sierra Forest argues that the judgment is final for practical purposes, given that the draft SEIS already released by the Forest Service demonstrates that "the remand will not address even the NEPA violation identified by" Sierra Forest IV, "much less the additional violations of NEPA and NFMA" that Sierra Forest alleges on appeal.

28 U.S.C. § 1291 provides us with jurisdiction over "ap-peals from all final decisions of the district courts of the United States," subject to exceptions inapplicable here. "[T]he requirement of finality is to be given a 'practical rather than a technical construction.' " Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152 (1964) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). We have held that a remand order is final where (1) the district court conclusively resolves a separable legal issue, (2) the remand order forces the agency to apply a potentially erroneous rule which may result in a wasted proceeding, and (3) review would, as a practical matter, be foreclosed if an immediate appeal were unavailable.

Collord v. U.S. Dep't of the Interior, 154 F.3d 933, 935 (9th Cir. 1998). Because we apply a practical construction to the finality requirement, however, these are considerations, rather than strict prerequisites. See, e.g., Skagit County Pub. Hosp. Dist. No. 2 v. Shalala, 80 F.3d 379, 384 (9th 1996) (holding that an agency remand that would not foreclose a later appeal was nevertheless "final and appealable").

In Alsea Valley Alliance, we addressed an appeal from a district court order invalidating the listing of a particular population of salmon as "threatened" under the Endangered Species Act (ESA) and ordering the National Marine Fisheries Service to conduct further analysis consistent with the opinion. 358 F.3d at 1183. We dismissed an appeal by a group of intervenors for lack of jurisdiction, based on the absence of a final judgment, and held that "only agencies compelled to refashion their own rules face the unique prospect of being deprived of review altogether." Id. The decision depended on the possibility "that the action taken by the Service on remand will provide the [appellant] with all the relief it seeks," in which case any decision by the court of appeals "could prove entirely unnecessary." Id. at 1185.

On other hand, in Skagit County we held that a remand order may be final when the broad relief sought could not be achieved through the action the district court directed the agency to undertake, in that case a "meaningless remand" for recalculation of a portion of the claim, in other words "a party with no cake." 80 F.3d at 384. We similarly held in Pauly v. U.S. Department of Agriculture that a narrow partial remand for a "mechanical recalculation" does not preclude appellate review of the underlying claims because the district court's opinion is "practically final." 348 F.3d 1143, 1148 (9th Cir. 2003); see also Pit River Tribe v. U.S. Forest Serv., ___ F.3d ___, No. 09-15385, 2010 WL 2991395, at *4 (9th Cir. Aug. 2, 2010) ("Pit River II") ("Alsea did not announce a hard-and-fast rule prohibiting a non-agency litigant from appealing a remand order.").

It is theoretically possible that on remand the Forest Service could reconsider alternatives from the 2001 Framework in light of modeling and policy changes reflected in the 2004 Framework SEIS and conclude that one of those alternatives is preferable to the 2004 Framework. However, the final judgment rule deals in practice, not theory. The narrow injunction both left the 2004 Framework in place and placed a judicial imprimatur on the vast majority of the challenged SEIS. Moreover, the Forest Service has already released a draft SEIS that updates the NEPA alternatives analysis, and that SEIS concludes without detailed analysis that the modified alternatives would not "fulfill the purpose and need for the proposed action." As a practical matter, the work of both the district court and the agency is complete.

Moreover, the three considerations we articulated in Col-lord illustrate the practical finality of the district court's decision. There is no question that the district court decided numerous legal issues distinct from those to be addressed in the agency remand. Although the district court's order would not "force[ ] the agency to apply a potentially erroneous rule," it permits adherence to rules that plaintiffs continue to challenge and the Forest Service continues to defend on appeal, "which may result in a wasted proceeding." Collord, 154 F.3d at 935. The Forest Service recognized the inefficiency of such procedures by acquiescing to Sierra Forest's request to stay the remedy pending appeal. Finally, although review would not be foreclosed after further administrative proceedings, we have ignored this requirement in the face of a "cakeless" remand. See Skagit County, 80 F.3d at 384.

Our recent decision in Pit River II provides a useful counterpoint. There we held that an agency remand for an entirely new EIS, along with mandatory consultation with the plaintiff Indian tribe, did not constitute a final judgment subject to review. See 2010 WL 2991395, at *2-*6. Unlike the partially erroneous NEPA analysis found by the district court in this case, the agencies in Pit River II had failed entirely to engage in the required NEPA analysis prior to a disputed lease extension. See id. at *1. We also noted that the Pit River Tribe would "have an opportunity to participate in the agencies' processes on remand" and that it was "possible that the agencies may decide that no geothermal power production should occur on the land," obviating the need for appellate review. Id. at *5. This broad remand stands in stark contrast to the correction ordered in this case.

For the foregoing reasons, the district court's judgments are final and therefore subject to review under 28 U.S.C. § 1291. We therefore have jurisdiction over Sierra Forest's and California's appeals.

III. Standard of Review

Standing, ripeness and mootness are questions of law that we review de novo. See Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010) (standing); California ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1010 (9th Cir. 2009) (ripeness); Siskiyou Regional Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 559 (9th Cir. 2009) (mootness). We also "review the district court's grant of summary judgment de novo." California ex rel. Lockyer, 575 F.3d at 1011. "Agency decisions that allegedly violate . . . NEPA and [the] NFMA are reviewed under the Administrative Procedure Act ('APA'), and may be set aside only if they are 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' " Or. Natural Res. Council Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)).

Review under the arbitrary and capricious standard is narrow, and [federal courts do] not substitute [their] judgment for that of the agency. Rather, [courts] will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (internal quotation marks and citations omitted), abrogated on other grounds by Winter, 129 S. Ct. at 375.

"Although we review the district court's decision to grant a permanent injunction for an abuse of discretion, we review the rulings of law relied upon by the district court in awarding injunctive relief de novo." Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1176 (9th Cir. 2002) (internal citations omitted).

IV. National Environmental Policy Act

The National Environmental Policy Act is "our basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). NEPA requires that all agencies of the Federal Government shall include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2)(C). Agencies must also "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." Id. § 4332(2)(E). When an agency produces an environmental impact statement (EIS), it must "provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1.

"NEPA . . . does not impose any substantive requirements on federal agencies - it 'exists to ensure a process.' " Lands Council, 537 F.3d at 1000 (quoting Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996)). So long as "the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

A. Standing

[1] As a preliminary matter, the Forest Service contends that the State of California lacks standing to challenge the 2004 Framework under NEPA. Several intervenors also argue that Sierra Forest lacks standing to challenge the 2004 Framework under NEPA, asserting that no person or entity may ...


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