Feb 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17565. Appealed from the United States District Court for the Eastern District of California. As explained by the Majority Appeals Court, 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 2001 Framework. In January 2004, the Forest Service issued a Final Supplemental Environmental Impact Statement (2004 EIS) recommending significant changes to the 2001 Framework. The Forest Service adopted the preferred alternative in the 2004 EIS. The parties refer to this as the 2004 Framework.
Plaintiff-Appellant Pacific Rivers Council (Pacific Rivers) brought suit in Federal district court challenging the 2004 Framework as inconsistent with the National Environmental Protection Act (NEPA) and the Administrative Procedure Act (APA). The Appeals Court states, "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 Majority Appeals Court rules, ". . .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."
Further explaining, the Majority concludes, "In Lands Council II, we wrote that we will hold that an agency has acted in an arbitrary and capricious manner in preparing an EIS when it has 'entirely failed to consider an important aspect of the problem.' 537 F.3d at 987. In this case, the Forest Service 'entirely failed to consider' environmental consequences of the 2004 Framework on individual species of fish. Given the detailed 64-page analysis of the likely impact on individual species of fish in the 2001 EIS, the complete lack of such analysis of the likely impact on individual species of fish in the 2004 EIS, and the lack of any explanation in the 2004 EIS why it is not 'reasonably possible' to perform some level of analysis of such impact, we have no choice but to conclude that the Forest Service failed to take the requisite 'hard look' at environmental consequences of the 2004 Framework for fish.
"We hold that the Forest Service failed to take a hard look at environmental consequences on fish in the 2004 EIS, in violation of NEPA. We hold that the Forest Service did take a hard look at environmental consequences on amphibians in the 2004 EIS, in compliance with NEPA. We therefore reverse in part and affirm in part, and remand to the district court."
The Minority justice concludes in a lengthy minority opinion, ". . .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. . . 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. . ."
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