Pacific Rivers Council v. United States Forest Service

Brian Gaffney, Kelly A. Franger, Lippe Gaffney Wagner, San Francisco, CA, Babak Naficy, San Luis Obispo, CA, for the appellant.

Jennifer Scheller Neumann (argued), Cynthia S. Huber, U.S. Department of Justice, Washington, DC, Barclay T. Samford, U.S. Department of Justice, Denver, CO, David Taylor Shelledy, Office of the U.S. Attorney, Sacramento, CA, for the appellees.

J. Michael Klise, Thomas Richard Lundquist, Crowell & Moring, LLP, Washington, DC, Steven P. Rice, Crowell & Moring, LLP, Irvine, CA, Michael B. Jackson, Quincy, CA, for the intervenors-appellees.

Before: STEPHEN REINHARDT, WILLIAM A. FLETCHER and N. RANDY SMITH, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge N.R. SMITH.

W. FLETCHER, Circuit Judge:

The national forests of the Sierra Nevada Mountains ("the Sierras") are home to a rich array of fauna, including at least 61 species of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded: "The aquatic/riparian systems are the most altered and impaired habitats in the Sierra."

The Sierra Nevada Forest Plan applies to all…

dissenting:

The majority “conclude[s], contrary to the Forest Service’s contention, that it was ‘reasonably possible’ to provide some analysis of the environmental consequences on individual fish species in the 2004 EIS,” and thus that the agency’s decision not to provide this analysis “as soon as it [was] ‘reasonably possible’ to do so” was arbitrary and capricious. Maj. Op. 623,627. In doing so, the majority makes two fundamental errors: First, it reinvents the arbitrary and capricious standard of review, transforming it from an appropriately deferential standard to one freely allowing courts to substitute their judgments for that of the agency. In doing so, the majority disregards our circuit’s long-standing precedent holding that an agency’s timing of analysis required by the National Environmental Policy Act (NEPA) is not arbitrary and capricious if it is performed before a critical commitment of resources occurs. The majority instead creates an unclear rule based on “reasonable possibility” that imposes additional procedures not required by NEPA on the Forest Service. Such a rule “leave[s] the agencies uncertain as to their procedural duties under NEPA, ... invite[s]…

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge N.R. SMITH.

OPINION

The national forests of the Sierra Nevada Mountains (“the Sierras”) are home to a rich array of fauna, including at least 61 species of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded: “The aquatic/riparian systems are the most altered and impaired habitats in the Sierra.”

The Sierra Nevada Forest Plan applies to all of the national forests in the Sierras. In January 2001, the United States Forest Service (“Forest Service”) issued a Final Environmental Impact Statement (“2001 EIS”) recommending amendments to the Forest Plan. The amendments were intended, among other things, to conserve and repair the aquatic and riparian ecosystems. In January 2001, under the administration of President Clinton, the Forest Service adopted a modified version of the preferred alternative recommended in the 2001 EIS. The parties refer to this as the 2001 Framework.

In November 2001, under the administration of newly elected President Bush, the Chief of the Forest Service asked for a review of the…