715 F.3d 1181 (9th Cir. 2013), 11-35729, Conservation Northwest v. Sherman

Docket Nº:11-35729.
Citation:715 F.3d 1181
Opinion Judge:TASHIMA, Circuit Judge:
Party Name:CONSERVATION NORTHWEST; Gifford Pinchot Task Force; Environmental Protection Information Center; Klamath Alliance; Umpqua Watersheds Inc.; Siskiyou Regional Education Project; Klamath-Siskiyou Wildlands Center; Oregon Wild; American Lands Alliance; Center for Biological Diversity; Northcoast Environmental Center, Plaintiffs-Appellees, v. Harris SHE
Attorney:Scott W. Horngren (argued), American Forest Resource Council; Shay S. Scott, Haglund Kelley Jones & Wilder LLP, Portland, OR, for Intervenor-Defendant-Appellant. John L. Smeltzer (argued), Attorney, Ignacia S. Moreno, Assistant Attorney General, and David C. Shilton, Attorney, Environmental & Nat...
Judge Panel:Before: ALEX KOZINSKI, Chief Judge, A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges.
Case Date:April 25, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1181

715 F.3d 1181 (9th Cir. 2013)

CONSERVATION NORTHWEST; Gifford Pinchot Task Force; Environmental Protection Information Center; Klamath Alliance; Umpqua Watersheds Inc.; Siskiyou Regional Education Project; Klamath-Siskiyou Wildlands Center; Oregon Wild; American Lands Alliance; Center for Biological Diversity; Northcoast Environmental Center, Plaintiffs-Appellees,

v.

Harris SHERMAN; Marcilynn Burke; Terry Rabot; United States Forest Service; Bureau of Land Management; U.S. Fish and Wildlife Service, Defendants-Appellees,

D.R. Johnson Lumber Company, Intervenor-Defendant-Appellant.

No. 11-35729.

United States Court of Appeals, Ninth Circuit.

April 25, 2013

Argued and Submitted Oct. 9, 2012.

Page 1182

Scott W. Horngren (argued), American Forest Resource Council; Shay S. Scott, Haglund Kelley Jones & Wilder LLP, Portland, OR, for Intervenor-Defendant-Appellant.

John L. Smeltzer (argued), Attorney, Ignacia S. Moreno, Assistant Attorney General, and David C. Shilton, Attorney, Environmental & Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

Peter M.K. Frost (argued), Western Environmental Law Center, Eugene, OR, for Plaintiffs-Appellees.

Page 1183

Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. DC No. 2:08-cv-1067-JCC.

Before: ALEX KOZINSKI, Chief Judge, A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

We 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. 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. We have jurisdiction under 28 U.S.C. § 1291. We conclude that D.R. Johnson's first argument is meritorious, but that its second argument was waived. Accordingly, we reverse the district court.

I. Factual and Procedural Background

This is another case in the extensive and growing litigation saga of the NFP. See, e.g., Conservation Nw. v. Rey, 674 F.Supp.2d 1232, 1236-41 (W.D.Wash.2009); Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549 (9th Cir.2006); Nw. Ecosystem Alliance v. Rey, 380 F.Supp.2d 1175, 1181-84 (W.D.Wash.2005) (" NEA " ); Seattle Audubon Soc'y v. Lyons, 871 F.Supp. 1291, 1300-02 (W.D.Wash.1994), aff'd, 80 F.3d 1401 (9th Cir.1996). The NFP itself was the product of extensive litigation and political controversy in the 1990s surrounding the health of the old growth forests of the Pacific Northwest, it was intended as " a truce between conservationists and logging concerns." Conservation Nw., 674 F.Supp.2d at 1236-37. It is intended to serve the twin goals of protecting the long-term ecological health of the forests and providing for sustainable timber production, and so requires a " balancing act between commercial use and conservation." Id. at 1238.

The NFP applies to approximately 24.5 million acres of federal land between San Francisco and the Canadian border, and divides that land into " Reserves," " Adaptive Management" areas, and " Matrix" areas. Most commercial logging takes place in " Matrix" areas. The Agencies' management of these lands is also governed by federal statutes including the National Environmental Policy Act (" NEPA" ), the National Forest Management Act (" NFMA" ), the Endangered Species Act (" ESA" ), and the Federal Land Policy Management Act (" FLPMA" ). Approximately ten percent of NFP land is also subject to the O & C Act.

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Survey and Manage is one part of the NFP. It was adopted to assist the Agencies in assessing the impact of logging on approximately 400 little-known but ecologically crucial species.1 The Standard requires the Agencies to manage known sites where these species are found, conduct surveys for their presence prior to ground-disturbing activities, locate high priority sites for hard-to-find species, and conduct general regional surveys to learn more about the least-known species.

Based on their experience of the cost and complexity of implementing Survey and Manage during its first several years, the Agencies sought to amend the Standard in 2001. This prompted resistance from both commercial logging and conservation interests. See Douglas Timber Operators v. Rey, No. 01-63788-AA (D.Or.2001). That litigation ended with a settlement in which the Agencies agreed to go back to the drawing board to consider eliminating the Standard in its entirety. See id.

In 2004, the Agencies issued another environmental impact statement (" EIS" ) and accompanying record of decision (" ROD" ), this time opting to eliminate Survey and Manage. NEA, 380 F.Supp.2d at 1183. This action again sparked litigation, and in NEA the court found six violations of NEPA, set aside the 2004 ROD, reinstated the 2001 ROD, and enjoined authorization of logging on projects that were not in compliance with that earlier ROD. NEA v. Rey, 2006 WL 44361, at *9 (W.D.Wash. Jan. 9, 2006).

In 2001, the Agencies also attempted to downgrade and then remove the red tree vole from Survey and Manage without using formal amendment procedures mandated by FLPMA. Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 553, 562-63 (9th Cir.2006). In Boody, we concluded that the BLM had impermissibly " changed the terms and conditions of [Survey and Manage] without complying with [the procedural requirements of FLPMA]." Id. at 556.

In 2007, the Agencies issued their Final Supplemental EIS and accompanying ROD (" 2007 ROD" ). In these documents, the Agencies again opted to eliminate Survey and Manage. Conservation Nw., 674 F.Supp.2d at 1240. The present litigation ensued when Plaintiffs challenged this action, alleging violations of NEPA, NFMA, FLPMA, and the ESA. Id. at 1240-41. D.R. Johnson intervened as a defendant. Id. at 1241. Plaintiffs moved for partial summary judgment on their NEPA claims, and D.R. Johnson and the Agencies opposed that motion and cross-moved for summary judgment themselves. Id.

After comprehensive analysis of Plaintiffs' NEPA claims, the district court found four NEPA violations. Id. at 1244-53. Noting the " highly complex issues at stake, and the procedural posture" after partial summary judgment, the court declined to decide on a remedy at that time. Id. at 1257.

After lengthy negotiations, the Agencies and Plaintiffs filed a proposed settlement agreement detailing how Survey and Manage would operate going forward. The settlement includes a lengthy description of " New Exemptions from Pre-disturbance Surveys," and a list of " Species and Category Assignment[s]," including an explanation of new management requirements for certain species. D.R. Johnson objected that the settlement modified the Standard without complying with statutorily mandated

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public-participation procedures, but the district court rejected this contention and entered the settlement as a consent decree. The court cited Turtle Island Restoration Network v. U.S. Department of Commerce, 834 F.Supp.2d 1004 (D.Haw.2011), explaining that its entry of the consent decree " invoke[d] a judicial act, not an agency act," and that the general rules applicable to agencies were therefore not relevant. D.R. Johnson timely appeals.

II. Discussion

D.R. Johnson contends that the district court abused its discretion by entering a consent decree that effectively amended Survey and Manage without going through procedures required by NEPA, FLPMA, NFMA, and their implementing regulations. Appellees respond that, because the consent decree was a " judicial act," procedural requirements that would otherwise govern agency action are inapplicable.2 D.R. Johnson further argues that application of the consent decree to lands covered by the O & C Act would violate that Act.3 Appellees reply that D.R. Johnson waived this argument by failing to raise it adequately before the district court.

We review a district court's approval of a consent decree for abuse of discretion. Turtle Island Restoration Network v. U.S. Dep't of Commerce, 672 F.3d 1160, 1165 (9th Cir.2012). " Abuse of discretion" means that a decision rests on a clearly erroneous finding of material fact or is the result of a failure to apply the correct law. Id.; see also United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir.2009) (en banc). We...

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