Supreme Court Affirms Programmatic EIS for Sierra Nevada Framework

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Jun 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17565.Appeal from the United States District Court for the Eastern District of California. The Appeals Court indicates that, “This court’s opinion filed on February 3, 2012, and reported at 668 F.3d 609 (9th Cir. 2012), is withdrawn, and is replaced by the attached Opinion and Dissent. . . The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote onwhether to rehear the matter en banc. . . The petition for rehearing and the petition for rehearing en banc, filed on April 18, 2012, are denied.”

According to the Appeals Court, Plaintiff-Appellant Pacific Rivers Council (Pacific Rivers) brought suit in Federal district court challenging the 2004 Framework for the Sierra Nevada Mountains (the Sierras) as inconsistent with the National Environmental Protection Act (NEPA) and the Administrative Procedure Act (APA). The Appeals Court said, “The gravamen of Pacific Rivers’ complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians.” On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service.

The Appeals Court rules, “Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, we conclude that the Forest Service’s analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service’s analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court.”
In a lengthy dissenting opinion, one Justice concludes, “. . .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. . . Second, the majority ignores the tiering framework created by NEPA. Because the majority ignores such framework, it fails to differentiate between a site-specific environmental impact statement (EIS) and a programmatic EIS that focuses on high-level policy decisions. . .”
It appears that an impossibly comprehensive study of the entire Sierra Nevada “watershed” will not be required for the amended Sierra Nevada Framework plan. If the Forest Service loses this case, it would have to limit the harvest of trees within thinning projects to 12″ dbh in some areas, and to 20″ dbh in the rest of the Sierra Nevada. This decision means that the Forest Service has followed NEPA law since the amendment has been in force. If the Pacific Rivers Council had prevailed, we would be seeing a complete failure of the Forest Service’s timber management program throughout the Sierra Nevada. Sierra Pacific Industries has plenty of their own lands, stocked with plenty of trees in the 12″-20″ dbh size. There would be no need for SPI to bid on the thinning projects that would be offered by the Forest Service under the old diameter limits. The small amount of harvested trees between 20″ and 29.9″ dbh are what pays for the biomass removal needed for true restoration. When thinning projects reduce wildfire threats, and actual wildfire impacts, water quality and fish habitats are improved.

16 Comments

  1. It appears that they have decided not to decide, and let the lower court decision stand. I don’t know what became of the “standing” issue but, it seems like it was a non-issue, as it should be. The Ninth Circuit Court was wrong in demanding a comprehensive study of the impacts that could happen throughout the Sierra Nevada, instead of actual project-level analysis, which would include cumulative effects. It is not surprising that this news isn’t being publicized. I’m sure that some would consider this to be a demoralizing defeat.

  2. Comment from Pacific Rivers Council:

    PRC’s Executive Director John Kober released the following statement in response:

    “Our goal in this litigation was to determine what would happen to protected fish and clean water by the activities allowed under the 2004 Sierra Nevada Framework. PRC is disappointed that, after a Ninth Circuit ruling that the Forest Service shirked its responsibility to provide any analysis on the impacts to fish species, the Obama administration chose to use a procedural tactic to exclude the public from challenging the Framework rather than addressing the threats to native fish. We requested this dismissal based on the substantial costly and time-consuming additional litigation that would be needed in order to achieve meaningful relief. The combination of a federal judge unsympathetic to our claims and the Obama administration’s relentless pursuit of public exclusion left us without a viable path to achieving meaningful relief from the features of the Framework that threaten environmental harm. We will pursue other avenues to force the Obama administration to address activities that threaten fish, wildlife and clean water and provide the required environmental analysis to avoid such impacts in future plans. We hope that the Obama administration’s policies and tactics of public exclusion will be further exposed.”

    It seems that if PRC’s claims are true, they should have no problem presenting all the projects that have caused “environmental harm” under the amended Sierra Nevada Framework for the last 9 years. They should also have no problem litigating future projects that don’t cut old growth, have no new road construction, avoid endangered species habitats and cuts trees averaging 15″ dbh, eh? I find it amusing that PRC laments that a “procedural tactic” was used in court. *smirk*

  3. What PRC ultimately got was a new decision from the district court. The judge ordered the Forest Service to re-do the Framework effects analysis for fish. The judge did not enjoin any projects while this analysis is being completed (and based on the representations from PRC to the Supreme Court, I assume that they will not be appealing that decision).

        • Nope. It appears you are too old for Internet tradition. *SMIRK* = Big Smirk. I also sense a precedent-setting disturbance in The Force, as if thousands of litigators sighed all at once, then were silenced. *smirky, smirky, SMIRK*

          We will see what the Forest Service will do, post-SCOTUS. It was a nice touch that a certiorari was issued to keep the Ninth Circuit Court (and their liberal tendencies) in check. on this case. I predict that Region 5 will take the same “hard look” at fishery impacts as they did with the amphibians. Certainly, a programmatic EIS wouldn’t require many pages to arrive with a general identification of possible impacts, and their general mitigations.

          • Larry, I could not have summarized your clarification of your usage of “internet tradition” (“*SMIRK* = Big Smirk. “) any better than what my online dictionary describes as “smirk”:

            smirk |smərk| verb
            smile in an irritatingly smug, conceited, or silly way…

            I’d rethink your definitions of the “dark side” if you think your “Big Smirk(ing)”, somehow, isn’t darkly “smug, conceited or silly”

            • I wouldn’t say I am conceited but, I AM glad I am using it correctly *smirk* Anger leads to the dark side, and I prefer to be silly in face of anger directed at me. Yes, I can be VERY smug when litigants complain about the government using “procedural tactics” that do, indeed, “follow the law”, as “judged” by the Supreme Court. Turnabout can be fair play, under the law.

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