This sounds like an interesting case… does anyone have access to Bloomberg Law and can post excerpts from their story? Thanks to Nick Smith for this snippet. Ah… plans.
The U.S. Forest Service doesn’t need to update a plan for a Montana forest to account for climate change because the plan doesn’t qualify as an ongoing federal action, the Ninth Circuit affirmed Friday. The ruling in the U.S. Court of Appeals for the Ninth Circuit came as a loss to the Cottonwood Environmental Law Center. The group argued the agency was required to update the 1987 Gallatin Forest Plan after it recognized in 2012 that forest plans needed updates due to climate change.
But doesn’t the Custer-Gallatin have a 2020 plan? Perhaps someone can explain..
The Ninth Circuit’s ruling is aligned with the 2004 SUWA v. Norton Supreme Court decision, which established that an approved plan is not an ongoing “major federal action”. Following is the ending excerpt written by Justice Scalia – the vote was 9-0 (I believe):
“Here, by contrast, although the “[a]pproval of a [land use plan]” is a “major Federal action” requiring an EIS, 43 CFR § 1601.0—6 (2003) (emphasis added), that action is completed when the plan is approved. The land use plan is the “proposed action” contemplated by the regulation. There is no ongoing “major Federal action” that could require supplementation (though BLM is required to perform additional NEPA analyses if a plan is amended or revised, see §§1610.5—5, 5—6).”
Ditto to what Anthony wrote. This ruling followed the holding in SUWA v. Norton regarding planning decisions and is not all that surprising. NEPA is triggered when a Federal agency takes an action. Once a land management plan is approved, as Scalia wrote, the federal action is done. In December, Brian Morris, the Montana federal district court judge, dismissed Cottonwood’s request on the grounds that “no ongoing major federal action exists that could require supplementation of the 1987 Forest Plan based on new information relating to climate change or forest plan revisions.” The Judge also pointed out that ordering supplementation of a Forest Plan that is already in a revision process would be “duplicative.”
I haven’t seen the opinion, but Tony is correct, and that is how the district court decided the case. This is strictly a NEPA ruling (and is contrary to other cases involving ESA, where the issue of reinitiating consultation on forest plans as become referred to as the “Cottonwood” problem based on another case by the same plaintiff). The primary climate change issue was new information about potential regeneration failure.
I agree that the revised forest plan seems like it would moot the case, but the district court decision preceded the completion of the revised plan (which was finalized in January, just prior this hearing). This case was also primarily about three project decisions, and if they were based on a flawed plan they could arguably still be enjoined for that reason.
You can actually watch the Ninth Circuit hearing in this case here (40 minutes): https://www.youtube.com/watch?v=UKjSAeONKng
The opinion can be gound here: https://cdn.ca9.uscourts.gov/datastore/memoranda/2022/05/06/21-35070.pdf
Thanks, Ted. (It’s short and sweet.) I didn’t realize that the “climate change” claim was based on the issuance of the 2012 Planning Rule where §219.5 mentions that the planning process “allows the Forest Service to adapt to changing conditions, including climate change, and improved management based on new information and monitoring.”
Interesting that the court did not address the substantive issue of climate-induced regeneration failure at the project level. Apparently that was because the plaintiff did not bring that up in the project claims (and only indirectly brought up this specific information in the forest plan claim).
The court also dodged the question plaintiff raised of whether a project must be invalidated solely because of legal flaws in the forest plan. I think there is authority for this argument under NFMA where a plan does not adequately protect a species, but not necessarily under NEPA or ESA where the effects just need to be evaluated somewhere (and project analysis could arguably backfill missing plan analysis).
In the video you would see that Plaintiff had argued that forest plans are ongoing actions because they can be amended, and the government responded that each amendment is a new decision, subject to its own NEPA requirements rather than supplementation of forest plan NEPA. (The Forest Service has never made this very clear.) Thus a plan amendment to prohibit actions that would adversely affect a newly listed species would not require any NEPA, since the effects of that decision would preserve the environmental status quo or would be beneficial (two circumstances that don’t require NEPA). (I once suggested the Forest Service provide a categorical exclusion for this, to make forest plans more responsive, and the idea of “interim amendments” for this purpose got into a draft of a planning rule early on, but I guess they didn’t like the idea much.)
So, sounds like we are not getting a bad legal precedent from the 9th Circuit, but rather bad legal strategy from the plaintiffs.
I got the impression from the video that there were some weaknesses in the pleadings, but I haven’t seen the complaint and haven’t looked at the record. It’s possible the “new information” about regeneration failure was not brought up for the projects because the project NEPA documents did address it.
The forest plan issue was subject to the Supreme Court precedent (but hey, is that really important any more?). In the hearing, the plaintiff tried to distinguish this case from that one based on the fact that this one included a challenge to projects as well as the plan (failure to challenge a project was the rationale used by the Supreme Court in finding some forest plan decisions not ripe for judicial review in the Ohio Forestry case – a different issue), but this didn’t seem to get any traction and was not addressed in the opinion. (The opinion made it clear that plans can be “ongoing actions” under ESA even if they are not under NEPA because the language of the statutes is different.)