Usfs

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PACIFIC RIVERS COUNCIL, 

Plaintiff-Appellant, v.

UNITED STATES FOREST SERVICE;

MARK REY, in his official capacity as Under Secretary of Agriculture; No. 08-17565 DALE BOSWORTH, in his capacity as D.C. No. Chief of the United States Forest 2:05-cv-00953- Service; JACK BLACKWELL, in his

MCE-GGH

official capacity as Regional Forester, Region 5, United States  ORDER Forest Service, WITHDRAWING Defendants-Appellees, OPINION AND

DENYING

and

REHEARING AND

CALIFORNIA FORESTRY ASSOCIATION; OPINION

AMERICAN FOREST & PAPER

ASSOCIATION; QUINCY LIBRARY

GROUP; PLUMAS COUNTY;

CALIFORNIA SKI INDUSTRY

ASSOCIATION,

Defendants-intervenors-Appellees.  Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding

Argued and Submitted May 10, 2010—San Francisco, California

Filed June 20, 2012

7155 7156 PACIFIC RIVERS COUNCIL v. USFS Before: Stephen Reinhardt, William A. Fletcher and N. Randy Smith, Circuit Judges.

Opinion by Judge…

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

ORDER

This court’s opinion filed on February 3, 2012, and reported at 668 F.3d 609 (9th Cir.2012), is withdrawn, and is replaced by the attached Opinion and Dissent.

With the filing of the new opinion, Judges Reinhardt and W. Fletcher vote to deny the petition for rehearing and the petition for rehearing en banc. Judge N.R. Smith votes to grant the petition for rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc, filed on April 18, 2012, are DENIED.

No further petitions for rehearing or rehearing en banc will be accepted.

*1015 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…

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. 1026, 1030. 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]…