California ex rel. Lockyer v. U.S. Dept. of Agr., No. 07-15613.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBeezer
Citation575 F.3d 999
Decision Date05 August 2009
Docket NumberNo. 07-15613.,No. 07-15614.,No. 07-15695.
PartiesPeople of the State of CALIFORNIA ex rel. Bill LOCKYER; State of New Mexico, ex rel. Patricia A. Madrid, Attorney General for the State of New Mexico; State of Oregon, by and through Theodore Kulongoski, Governor; State of Wyoming; The Wilderness Society; California Wilderness Coalition; Forests Forever Foundation; Northcoast Environmental Center; Oregon Natural Resources Council Fund; Sitka Conservation Society; Siskiyou Regional Education Project; Biodiversity Conservation Alliance; Sierra Club; National Audubon Society; Greater Yellowstone Coalition, Center for Biological Diversity; Environmental Protection Information Center; Klamath-Siskiyou Wildlands Center; Defenders of Wildlife; Pacific Rivers Council; Idaho Conservation League; Humane Society of the United States; Conservation NW; Greenpeace, Plaintiffs-Appellees, v. U.S. DEPARTMENT OF AGRICULTURE; Dale Bosworth, Chief of the U.S. Forest Service; Mike Johanns, Secretary of the Department of Agriculture; Mark Rey, under Secretary for Natural Resources & Environment of the Department of Agriculture; United States Forest Service, Defendants-Appellants, and American Council of Snowmobile Associations; Blueribbon Coalition; California Association of 4 Wheel Drive Clubs United Four Wheel Drive Associations; Silver Creek Timber Company, Inc., Defendant-intervenors, v. State of Washington, Plaintiff-intervenor-Appellee. The People of the State of California, Ex Rel. Bill Locyker Attorney General; State of New Mexico, ex rel; Patricia A. Madrid, Attorney General for the State of New Mexico; State of Oregon, by and through Theodore Kulongoski, Governor; State of Wyoming; The Wilderness Society; California Wilderness Coalition; Forests Forever Foundation; Northcoast Environmental Center; Oregon Natural Resources Council Fund; Sitka Conservation Society; Siskiyou Regional Education Project; Biodiversity Conservation Alliance; Sierra Club; National Audubon Society; Greater Yellowstone Coalition Center for Biological Diversity; Environmental Protection Information Center; Klamath-Siskiyou Wildlands Center; Defenders of Wildlife; Pacific Rivers Council; Idaho Conservation League; Humane Society of the United States; Conservation NW; Greenpeace, Plaintiffs-Appellees, v. United States Department of Agriculture; Dale Bosworth, Chief of the U.S. Forest Service; Mike Johanns, Secretary of the Department of Agriculture; Mark Rey, Under Secretary for Natural Resources & Environment of the Department of Agriculture; United States Forest Service, Defendants, American Council of Snowmobile Associations; Blueribbon Coalition; California Association of 4 Wheel Drive Clubs; United Four Wheel Drive Associations, Defendant-intervenors, and Silver Creek Timber Company, Inc., Defendant-intervenor-Appellant, v. State of Washington, Plaintiff-intervenor-Appellee. People of the State of California ex rel. Bill Lockyer; State of New Mexico, ex rel. Patricia A. Madrid, Attorney General for the State of New Mexico; State of Oregon, by and through Theodore Kulongoski, Governor; State of Wyoming; The Wilderness Society; California Wilderness Coalition; Forests Forever Foundation; Northcoast Environmental Center; Oregon Natural Resources Council Fund; Sitka Conservation Society; Siskiyou Regional Education Project; Biodiversity Conservation Alliance; Sierra Club; National Audubon Society; Greater Yellowstone Coalition, Center for Biological Diversity; Environmental Protection Information Center; Klamath-Siskiyou Wildlands Center; Defenders of Wildlife; Pacific Rivers Council; Idaho Conservation League; Humane Society of the United States; Conservation NW; Greenpeace, Plaintiffs-Appellees, v. U.S. Department of Agriculture; Dale Bosworth, Chief of the U.S. Forest Service; Mike Johanns, Secretary of the Department of Agriculture; Mark Rey, Under Secretary for Natural Resources & Environment of the Department of Agriculture; United States Forest Service, Defendants, Silver Creek Timber Company, Inc., Defendant-intervenor, and American Council of Snowmobile Associations; Blueribbon Coalition; California Association of 4 Wheel Drive Clubs United Four Wheel Drive Associations, Defendant-intervenors-Appellants, v. State of Washington, Plaintiff-intervenor-Appellee.
575 F.3d 999
People of the State of CALIFORNIA ex rel. Bill LOCKYER; State of New Mexico, ex rel. Patricia A. Madrid, Attorney General for the State of New Mexico; State of Oregon, by and through Theodore Kulongoski, Governor; State of Wyoming; The Wilderness Society; California Wilderness Coalition; Forests Forever Foundation; Northcoast Environmental Center; Oregon Natural Resources Council Fund; Sitka Conservation Society; Siskiyou Regional Education Project; Biodiversity Conservation Alliance; Sierra Club; National Audubon Society; Greater Yellowstone Coalition, Center for Biological Diversity; Environmental Protection Information Center; Klamath-Siskiyou Wildlands Center; Defenders of Wildlife; Pacific Rivers Council; Idaho Conservation League; Humane Society of the United States; Conservation NW; Greenpeace, Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF AGRICULTURE; Dale Bosworth, Chief of the U.S. Forest Service; Mike Johanns, Secretary of the Department of Agriculture; Mark Rey, under Secretary for Natural Resources & Environment of the Department of Agriculture; United States Forest Service, Defendants-Appellants, and
American Council of Snowmobile Associations; Blueribbon Coalition; California Association of 4 Wheel Drive Clubs United Four Wheel Drive Associations; Silver Creek Timber Company, Inc., Defendant-intervenors,
v.
State of Washington, Plaintiff-intervenor-Appellee.
The People of the State of California, Ex Rel. Bill Locyker Attorney General; State of New Mexico, ex rel; Patricia A. Madrid, Attorney General for the State of New Mexico; State of Oregon, by and through Theodore Kulongoski, Governor; State of Wyoming; The Wilderness Society; California Wilderness Coalition; Forests Forever Foundation; Northcoast Environmental Center; Oregon Natural Resources Council Fund; Sitka Conservation Society; Siskiyou Regional Education Project; Biodiversity Conservation Alliance; Sierra Club; National Audubon Society; Greater Yellowstone Coalition Center for Biological Diversity; Environmental Protection Information Center; Klamath-Siskiyou Wildlands Center; Defenders of Wildlife; Pacific Rivers Council; Idaho Conservation League; Humane Society of the United States; Conservation NW; Greenpeace, Plaintiffs-Appellees,
v.
United States Department of Agriculture; Dale Bosworth, Chief of the U.S. Forest Service; Mike Johanns, Secretary of the Department of Agriculture; Mark Rey, Under Secretary for Natural Resources & Environment of the Department of Agriculture; United States Forest Service, Defendants,

[575 F.3d 1000]

American Council of Snowmobile Associations; Blueribbon Coalition; California Association of 4 Wheel Drive Clubs; United Four Wheel Drive Associations, Defendant-intervenors, and
Silver Creek Timber Company, Inc., Defendant-intervenor-Appellant,
v.
State of Washington, Plaintiff-intervenor-Appellee.
People of the State of California ex rel. Bill Lockyer; State of New Mexico, ex rel. Patricia A. Madrid, Attorney General for the State of New Mexico; State of Oregon, by and through Theodore Kulongoski, Governor; State of Wyoming; The Wilderness Society; California Wilderness Coalition; Forests Forever Foundation; Northcoast Environmental Center; Oregon Natural Resources Council Fund; Sitka Conservation Society; Siskiyou Regional Education Project; Biodiversity Conservation Alliance; Sierra Club; National Audubon Society; Greater Yellowstone Coalition, Center for Biological Diversity; Environmental Protection Information Center; Klamath-Siskiyou Wildlands Center; Defenders of Wildlife; Pacific Rivers Council; Idaho Conservation League; Humane Society of the United States; Conservation NW; Greenpeace, Plaintiffs-Appellees,
v.
U.S. Department of Agriculture; Dale Bosworth, Chief of the U.S. Forest Service; Mike Johanns, Secretary of the Department of Agriculture; Mark Rey, Under Secretary for Natural Resources & Environment of the Department of Agriculture; United States Forest Service, Defendants,
Silver Creek Timber Company, Inc., Defendant-intervenor, and
American Council of Snowmobile Associations; Blueribbon Coalition; California Association of 4 Wheel Drive Clubs United Four Wheel Drive Associations, Defendant-intervenors-Appellants,
v.
State of Washington, Plaintiff-intervenor-Appellee.
No. 07-15613.
No. 07-15614.
No. 07-15695.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 20, 2008.
Filed August 5, 2009.
Amended August 25, 2009.

[575 F.3d 1003]

Edmund G. Brown, Jr., and Claudia Polsky, California Department of Justice, Oakland, CA, for plaintiff-appellee State of California.

Hardy Myers, Mary H. Williams, and David E. Leith, Office of the Oregon Attorney General, Salem, OR, for plaintiff-appellee State of Oregon.

Rob McKenna, Mary Sue Wilson, Joan M. Marchioro, and Sheila Lynch, Office of the Washington Attorney General, Olympia,

[575 F.3d 1004]

WA, for plaintiff-appellee State of Washington.

Gary King, Stephen Farris, and Judith Ann Moore, Office of the New Mexico Attorney General, Santa Fe, NM, for plaintiff-appellee State of New Mexico.

Kristen L. Boyles, Earthjustice, Seattle, WA, Timothy J. Preso, Earthjustice, Bozeman, MT, and Thomas S. Waldo, Earthjustice, Juneau, AK, for plaintiff-appellees The Wilderness Society, California Wilderness Coalition, Forests Forever Foundation, Northcoast Environmental Center, Oregon Wild, Sitka Conservation Society, Siskiyou Regional Education Project, Biodiversity Conservation Alliance, Sierra Club, National Audubon Society, Greater Yellowstone Coalition, Center for Biological Diversity, Environmental Protection Information Center, Klamath-Siskiyou Wildlands Center, Defenders of Wildlife, Pacific Rivers Council, Idaho Conservation League, Humane Society of the United States, Conservation NW and Greenpeace.

Ronald J. Tenpas, David C. Shilton, and John L. Smeltzer, United States Department of Justice, Washington, D.C., for the defendant-appellant United States Department of Agriculture and United States Forest Service.

Paul A. Turcke and Carl J. Withroe, Moore Smith Buxton & Turcke, Chtd., Boise, ID, for the defendant-intervenor-appellants California Association of 4 Wheel Drive Clubs, United Four Wheel Drive Associations, American Council of Snowmobile Associations and the BlueRibbon Coalition.

Scott W. Horngren, Haglund Kelley Horngren Jones & Wilder, LLP, Portland, OR, and Dennis M. Wilson, Wilson Law, Sacramento, CA, for defendant-appellant-intervenor Silver Creek Timber Company.

Bruce A. Salsburg, Jay Jerde, and Robert A. Nicholas, Office of the Wyoming Attorney General, for amicus curiae State of Wyoming.

Mick McGrath and Candace F. West, Office of the Montana Attorney General, Helena, MT, for amicus curiae State of Montana.

G. Steven Rowe and Mark Randlet, Office of the Maine Attorney General, Augusta, ME, for amicus curiae State of Maine.

Appeal from the United States District Court, for the Northern District of California, Elizabeth D. Laporte, Magistrate Judge, Presiding. D.C. No. CV-05-03508-EDL.

Before ROBERT R. BEEZER, JAY S. BYBEE, and CARLOS T. BEA, Circuit Judges.

BEEZER, Circuit Judge:


This case involves procedural challenges to a United States Forest Service Rule known as the State Petitions Rule. The plaintiffs, several states and various environmentalist organizations, contend that the State Petitions Rule was promulgated without proper process and that it is invalid. They urge us to affirm the district court, which set aside the State Petitions Rule and reinstated the Roadless Area Conservation Rule, more commonly known as the "Roadless Rule," pending Forest Service compliance with the National Environmental Policy Act and the Endangered Species Act.

We agree with the plaintiffs that the promulgation of the State Petitions Rule effected a repeal of the Roadless Rule, which we previously found to afford greater protections to the nation's roadless areas than those the individual forest plans provide. The Forest Service's use of a categorical exemption to repeal the nationwide protections of the Roadless Rule and to invite States to pursue varying rules for

575 F.3d 1005

roadless area management was unreasonable. It was likewise unreasonable for the Forest Service to assert that the environment, listed species, and their critical habitats would be unaffected by this regulatory change.

We affirm the district court's order permanently enjoining the implementation of the State Petitions Rule because the Forest Service violated the National Environmental Policy Act and the Endangered Species Act when it promulgated the State Petitions Rule. We further conclude that the district court did not abuse its discretion in ordering the Forest Service to comply with the Roadless Rule as a remedy for these procedural shortcomings.

I

Before turning to the merits of this dispute, we will provide an overview of the factual background and procedural history of the instant litigation. We will also resolve disputes about the ripeness of the plaintiffs' claims and the appropriate standard of review to apply to them.

A

The State Petitions Rule is the most recent effort by the Forest Service to address the management of roadless areas in the national forests. In order to appreciate this rule and the plaintiffs' challenges to its validity, one must have a general understanding of the land management measures that preceded it.

The U.S. National Forest System consists of approximately 192 million acres of national forests, national grasslands, and related areas. The Forest Service manages these lands under several federal statutes, including the National Forest Management Act, 16 U.S.C. §§ 1600-14. Under the National Forest Management Act, the Forest Service must develop and periodically revise an integrated land and resource management plan, commonly known as a "forest plan," for each unit of the National Forest System. 16 U.S.C. § 1604(a), (f); see also Idaho Sporting Cong., Inc. v....

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  • Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., Case No. 3:17-cv-00253-TMB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • March 15, 2019
    ...Abbott Labs. v. Gardner , 387 U.S. 136, 148–49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).113 Id. (citing California v. U.S. Dep't of Agric. , 575 F.3d 999, 1011 (9th Cir. 2009) ).114 Kern , 284 F.3d at 1071.115 Kraayenbrink , 632 F.3d at 486 (quoting Ohio Forestry , 523 U.S. at 727, 118 S.Ct. 1......
  • Friends Of The River v. Nat'l Marine Fisheries Serv. ., No. Civ. S-06-2845 LKK/JFM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 8, 2010
    ...endangered species priority over the ‘primary missions' of federal agencies.’ ” Cal. ex rel. Lockyer v. United States Dep't of Agric., 575 F.3d 999, 1018 (9th Cir.2009) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 185, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)). The ESA's protection i......
  • State v. Bernhardt, Case No. 19-cv-06013-JST
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • May 18, 2020
    ...program to limit harm to endangered species within the United States." California ex rel. Lockyer v. U.S. Dept. of Agriculture , 575 F.3d 999, 1018 (9th Cir. 2009). Section 4 of the Act requires NMFS and FWS (collectively "the Services") to identify endangered and threatened species and des......
  • Coal. for a Sustainable Delta v. Fed. Emergency Mgmt. Agency, 1:09-cv-02024 OWW GSA
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 19, 2011
    ...Species or their critical habitat, even in a beneficial way, consultation is required. Cal. ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 101819 (2009) (citing 51 Fed. Reg. 19,926, 19,949 (June 3, 1996) ("Any possible effect, whether beneficial, benign, adverse or of an undetermine......
  • Request a trial to view additional results
101 cases
  • Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., Case No. 3:17-cv-00253-TMB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • March 15, 2019
    ...Abbott Labs. v. Gardner , 387 U.S. 136, 148–49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).113 Id. (citing California v. U.S. Dep't of Agric. , 575 F.3d 999, 1011 (9th Cir. 2009) ).114 Kern , 284 F.3d at 1071.115 Kraayenbrink , 632 F.3d at 486 (quoting Ohio Forestry , 523 U.S. at 727, 118 S.Ct. 1......
  • Friends Of The River v. Nat'l Marine Fisheries Serv. ., No. Civ. S-06-2845 LKK/JFM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 8, 2010
    ...endangered species priority over the ‘primary missions' of federal agencies.’ ” Cal. ex rel. Lockyer v. United States Dep't of Agric., 575 F.3d 999, 1018 (9th Cir.2009) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 185, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)). The ESA's protection i......
  • State v. Bernhardt, Case No. 19-cv-06013-JST
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • May 18, 2020
    ...program to limit harm to endangered species within the United States." California ex rel. Lockyer v. U.S. Dept. of Agriculture , 575 F.3d 999, 1018 (9th Cir. 2009). Section 4 of the Act requires NMFS and FWS (collectively "the Services") to identify endangered and threatened species and des......
  • Coal. for a Sustainable Delta v. Fed. Emergency Mgmt. Agency, 1:09-cv-02024 OWW GSA
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 19, 2011
    ...Species or their critical habitat, even in a beneficial way, consultation is required. Cal. ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 101819 (2009) (citing 51 Fed. Reg. 19,926, 19,949 (June 3, 1996) ("Any possible effect, whether beneficial, benign, adverse or of an undetermine......
  • Request a trial to view additional results

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