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Sierra Forest Legacy v. Sherman

ELR Citation: 41 ELR 20193
Nos. Nos. 09-17796, 10-15026, (9th Cir., 05/26/2011)

The Ninth Circuit affirmed in part and vacated in part a lower court decision largely granting summary judgment in favor of the U.S. Forest Service on environmental groups' and California's NEPA and NFMA claims challenging the agency's 2004 Sierra Nevada forest plan amendment and a timber harvesting project approved under that amendment. The lower court held that the Forest Service violated NEPA by failing to consider alternative actions using certain modeling techniques and management priorities, but it rejected several other NEPA and NFMA claims. The court agreed that the Forest Service largely complied with NEPA. The agency adequately disclosed conflicting scientific opinion, focused on short-term effects of intensified management, and conducted and disclosed a substantial assessment of cumulative impacts. Nevertheless, the Forest Service abused its discretion by finding that it lacked jurisdiction to bar implementation of the 2004 amendment during a remand for analysis under NEPA. If courts can not stop the federal government from applying a substantive rule promulgated without adherence to required procedures, regardless of the equities, both NEPA and the APA would be toothless. The lower court also erred in granting summary judgment for the Forest Service on the groups' claim that the 2004 amendment violates the NFMA by failing to maintain viable populations of old forest wildlife. The lower court applied a 2007 amendment that purports to retroactively eliminate the monitoring requirement. But the groups' claim that the timber project violates the NFMA is not ripe for review until after the lower court decides the first NFMA claim. The lower court also abused its discretion when considering the equitable factors governing entry of a permanent injunction. The court, therefore, vacated the lower court's narrow permanent injunction.