By Glen C. Hansen

In Sierra Forest Legacy v. Sherman (9th Cir. 2011) 646 F.3d 1161, the United States Forest Service established management guidelines under the 2004 Sierra Nevada Forest Plan Amendment (“2004 Framework”) that govern 11.5 million acres of federal land in the Sierra Nevada region. Environmental groups and the State of California filed separate actions challenging the 2004 Framework under the National Environmental Policy Act (“NEPA”), and the environmental groups also challenged the 2004 Framework under the National Forest Management Act (“NFMA”). The parties cross-moved for summary judgment. The U.S. District Court (a) issued a summary judgment that was largely unfavorable to the plaintiffs; (b) issued a limited remedial order in favor of plaintiffs that required the Forest Service to prepare a supplemental environmental impact statement to remedy a NEPA error; and (c) denied plaintiffs’ request to enjoin implementation of the 2004 Framework in the interim.

In a variety of separate opinions, a three-judge panel of the United States Court of Appeals for the Ninth Circuit issued the following four holdings on plaintiffs’ claims: 

First, the U.S. District Court correctly found that the supplemental environmental impact statement (“SEIS”) conducted by the Forest Service for the 2004 Framework complied with NEPA. The SEIS adequately addressed short-term impacts of the 2004 Framework to old forest wildlife and adequately disclosed and rebutted expert opposition regarding those impacts. 

Second, the district court correctly found that that the Basin Project—the timber harvesting project approved under the 2004 Framework—complied with NEPA because the Forest Service adequately addressed the cumulative impacts of the Basin Project to sensitive species. 

Third, the district court properly found that the Forest Service violated NEPA by failing to update the alternatives from the supplemental environmental impact statement under the 2001 Sierra Nevada Forest Plan Amendment to reflect the new modeling techniques used in the final SEIS for the 2004 Framework. However, the court held that the district court erred in granting a limited remedy that gave undue deference to government experts. The court of appeal remanded for reconsideration of the equities of the substantive injunction without giving undue deference to government experts. 

Fourth, the district court erred in granting summary judgment for the Forest Service on the plaintiffs’ two claims under NFMA. As to the first claim under NFMA, the district court improperly applied a 2007 amendment, retroactively, to the 2004 Framework’s management indicator species monitoring requirements, where Congress did not expressly provide for such retroactive application. As to the second claim under NFMA, which facially challenged the 2004 Framework’s maintenance of species viability, the court held that the claim was not ripe for review until after the district court decided whether the Basin Project’s approval complied with the 2004 Framework’ population monitoring requirements, as those requirements existed at the time the Basin Project was approved, which was prior to the 2007 Amendment. Thus, the court remanded the NFMA claims for further consideration.

Glen C. Hansen is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.