Conservation Northwest v. Sherman (U.S. Agencies)

Monday, April 29, 2013

Conservation Northwest v. Sherman (U.S. Agencies)

Apr 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35729. Appealed from the United States District Court for the Western District of Washington. The Appeals Court indicates that it must decide whether a district court may approve resolution of litigation involving a Federal agency through a consent decree, which substantially and permanently amends regulations that the agency could only otherwise amend by complying with statutory rulemaking procedures.

The Conservation Northwest and a coalition of other environmental groups (Plaintiffs) sued the Bureau of Land Management (BLM), Forest Service, and Fish and Wildlife Service (collectively, the Agencies), challenging changes to the "Survey and Manage Standard" [Survey and Manage or the Standard of the Northwest Forest Plan (NFP)]. Plaintiffs and the Agencies (together, Appellees) negotiated a settlement which the district court approved and entered in the form of a consent decree. Defendant-Intervenor D.R. Johnson Lumber Company (D.R. Johnson) appeals from the district court's approval of the consent decree contending that it was an abuse of discretion because: (1) the consent decree conflicts with applicable law by amending Survey and Manage without following applicable procedural requirements; and (2) its application to lands subject to the Oregon and California Railroad and Coos Bay Wagon Road Grants Land Act (O & C Act) violates the terms of that Act.

The Appeals Court ruled, "We conclude that D.R. Johnson's first argument is meritorious, but that its second argument was waived. Accordingly, we reverse the district court." Finally, the Appeals Court concludes, "Because the consent decree allows for substantial, permanent amendments to Survey and Manage, it impermissibly conflicts with laws governing the process for such amendments. It was therefore an abuse of discretion for the district court to approve it in its current form. We reverse and remand for further proceedings consistent with this opinion."

Access the complete opinion (click here). [#Land, #Wildlife, #CA9]

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