Legacy v. Sherman, Nos. 09–17796

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore: STEPHEN REINHARDT, JOHN T. NOONAN, JR. and RAYMOND C. FISHER, Circuit Judges.
Citation646 F.3d 1161,73 ERC 1050
PartiesSIERRA FOREST LEGACY; Center for Biological Diversity; Natural Resources Defense Council; Sierra Club; The Wilderness Society, Inc., Plaintiffs–Appellantsv.Harris SHERMAN, in his official capacity as Under Secretary for Natural Resources and Environment, U.S. Department of Agriculture; Tom Tidwell, in his official capacity as Chief of the U.S. Forest Service; Randy Moore, in his official capacity as Regional Forester, U.S. Forest Service Region 5; Alice Carlton, in her official capacity as Forest Supervisor, Plumas National Forest; Quincy Library Group, Defendants–Appellees,American Forest & Paper Association; American Forest Resource Council; Blueribbon Coalition; California Equestrian Trails & Lands Coalition; California Forest Counties Schools Coalition; California Forestry Association; California Licensed Foresters Association; California/Nevada Snowmobile Association; Coarsegold Resource Conservation District; Huntington Lake Association; Huntington Lake Big Creek Historical Conservancy; Klamath Alliance for Resources & Environment; Regional Council Of Rural Counties; Sierra Resource Conservation District; Strawberry Property Owner's Association; Tulare County Resource Conservation District; Tuolumne County Alliance for Resources & Environment; Western Council of Industrial Workers; California Cattlemen's Association, Defendants–Intervenors–Appellees.People of the State of California, Plaintiff–Appellant,v.United States Department of Agriculture; Tom Vilsack, Secretary, Department of Agriculture; Harris Sherman, Under Secretary for Natural Resources and Environment, U.S. Department of Agriculture; United States Forest Service; Tom Tidwell, Chief, U.S. Forest Service; Randy Moore, Regional Forester, Pacific Southwest Region, U.S. Forest Service, Defendants–Appellees,Quincy Library Group; American Forest & Paper Association; American Forest Resource Council; Blueribbon Coalition; California Equestrian Trails & Lands Coalition; California Forest Counties Schools Coalition; California Licensed Foresters Association; California/Nevada Snowmobile Association; Coarsegold Resource Conservation District; Huntington Lake Association; Huntington Lake Big Creek Historical Conservancy; Klamath Alliance for Resources & Environment; Regional Council of Rural Counties; Sierra Resource Conservation District; Strawberry Property Owners' Association; Tulare County Resource Conservation District; Tuolumne County Alliance for Resources & Environment; Western Council of Industrial Workers; California Forestry Association; California Cattlemen's Association, Defendants–Intervenors–Appellees.
Decision Date26 May 2011
Docket NumberNos. 09–17796,10–15026.

646 F.3d 1161
73 ERC 1050
11 Cal.
Daily Op. Serv. 6350
2011 Daily Journal D.A.R. 7691

SIERRA FOREST LEGACY; Center for Biological Diversity; Natural Resources Defense Council; Sierra Club; The Wilderness Society, Inc., Plaintiffs–Appellants
v.
Harris SHERMAN, in his official capacity as Under Secretary for Natural Resources and Environment, U.S. Department of Agriculture; Tom Tidwell, in his official capacity as Chief of the U.S. Forest Service; Randy Moore, in his official capacity as Regional Forester, U.S. Forest Service Region 5; Alice Carlton, in her official capacity as Forest Supervisor, Plumas National Forest; Quincy Library Group, Defendants–Appellees,American Forest & Paper Association; American Forest Resource Council; Blueribbon Coalition; California Equestrian Trails & Lands Coalition; California Forest Counties Schools Coalition; California Forestry Association; California Licensed Foresters Association; California/Nevada Snowmobile Association; Coarsegold Resource Conservation District; Huntington Lake Association; Huntington Lake Big Creek Historical Conservancy; Klamath Alliance for Resources & Environment; Regional Council Of Rural Counties; Sierra Resource Conservation District; Strawberry Property Owner's Association; Tulare County Resource Conservation District; Tuolumne County Alliance for Resources & Environment; Western Council of Industrial Workers; California Cattlemen's Association, Defendants–Intervenors–Appellees.People of the State of California, Plaintiff–Appellant,
v.
United States Department of Agriculture; Tom Vilsack, Secretary, Department of Agriculture; Harris Sherman, Under Secretary for Natural Resources and Environment, U.S. Department of Agriculture; United States Forest Service; Tom Tidwell, Chief, U.S. Forest Service; Randy Moore, Regional Forester, Pacific Southwest Region, U.S. Forest Service, Defendants–Appellees,Quincy Library Group; American Forest & Paper Association; American Forest Resource Council; Blueribbon Coalition; California Equestrian Trails & Lands Coalition; California Forest Counties Schools Coalition; California Licensed Foresters Association; California/Nevada Snowmobile Association; Coarsegold Resource Conservation District; Huntington Lake Association; Huntington Lake Big Creek Historical Conservancy; Klamath Alliance for Resources & Environment; Regional Council of Rural Counties; Sierra Resource Conservation District; Strawberry Property Owners' Association; Tulare County Resource Conservation District; Tuolumne County Alliance for Resources & Environment; Western Council of Industrial Workers; California Forestry Association; California Cattlemen's Association, Defendants–Intervenors–Appellees.

Nos. 09–17796

10–15026.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 2010.Filed May 26, 2011.


[646 F.3d 1167]

Gregory C. Loarie (argued), Oakland, CA, and Patrick Gallagher, San Francisco, CA, for plaintiffs-appellants Sierra Forest Legacy, Center for Biological Diversity, Natural Resources Defense Council, Sierra Club and The Wilderness Society, Inc.Edmund G. Brown, Jr., Attorney General of California, Sally Magnani and Janill L. Richards (argued), Supervising Deputy Attorneys General, Oakland, CA, for plaintiff-appellant State of California.Ignacia S. Moreno, U.S. Assistant Attorney General, Barclay Samford, Robert H. Oakley and Jennifer Scheller Neumann (argued), U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., and James L. Rosen,

[646 F.3d 1168]

U.S. Department of Agriculture, Office of General Counsel, San Francisco, CA, for defendants-appellees United States Department of Agriculture, United States Forest Service, Tom Vilsack, Harris Sherman, Tom Tidwell, Randy Moore and Alice Carlton.Michael B. Jackson (argued), Quincy, CA, for defendant-appellee and defendant-intervenor-appellee Quincy Library Group.Thomas R. Lundquist (argued) and J. Michael Klise, Washington, D.C., for defendants-intervenors-appellees American Forest and Paper Association, American Forest Resource Council, Blueribbon Coalition, California Equestrian Trails and Lands Coalition, California Forest Counties Schools Coalition, California Forestry Association, California Licensed Foresters Association, California/Nevada Snowmobile Association, Coarsegold Resource Conservation District, Huntington Lake Association, Huntington Lake Big Creek Historical Conservancy, Klamath Alliance for Resources and Environment, Regional Council of Rural Counties, Sierra Resource Conservation District, Strawberry Property Owners' Association, Tulare County Resource Conservation District, Tuolumne County Alliance for Resources and Environment and Western Council of Industrial Workers.William J. Thomas (argued) and Anthony Van Ruiten, Sacramento, CA, for defendant-intervenor-appellee California Cattlemen's Association.Appeal from the United States District Court for the Eastern District of California, Morrison C. England, District Judge, Presiding. D.C. Nos. 2:05–cv–00205–MCE–GGH, 2:05–cv–00211–MCE–GGH, 2:05–cv–00905–MCE–GGH.Before: STEPHEN REINHARDT, JOHN T. NOONAN, JR. and RAYMOND C. FISHER, Circuit Judges.PER CURIAM Introduction; Section I–VI by Judge FISHER; Section VII by Judge REINHARDT; Judge FISHER Dissenting in Part; Judge NOONAN Concurring in Part and Dissenting in Part.

OPINION
PER CURIAM:

This appeal concerns whether the process of establishing management guidelines governing 11.5 million acres of federal land in the Sierra Nevada region complied with both the procedural requirements of the National Environmental Policy Act (NEPA) and the substantive restrictions of the National Forest Management Act (NFMA). Sierra Forest Legacy, the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club and the Wilderness Society (collectively “Sierra Forest”) appeal a largely unfavorable summary judgment against them and a favorable but limited remedial order in their NEPA and NFMA suit challenging the 2004 Sierra Nevada Forest Plan Amendment (“the 2004 Framework”) and the Basin Project, a timber harvesting project approved under the 2004 Framework. The State of California also appeals a summary judgment against it and a limited remedial order in a related NEPA action. The district court found that the U.S. Forest Service and related federal defendants (collectively “the Forest Service”) violated NEPA by failing to consider alternative actions using the same modeling techniques and management priorities, but the court rejected several other NEPA and NFMA claims. The district court ordered the Forest Service to prepare a supplemental environmental impact statement (SEIS) to remedy the NEPA error and denied Sierra Forest and California's requests to enjoin implementation of the 2004 Framework in the interim.

[646 F.3d 1169]

Sierra Forest and California argue that the Forest Service violated NEPA both by failing to consider short-term impacts of the 2004 Framework and by failing to disclose and rebut expert opposition. Sierra Forest separately contends that the Forest Service violated NEPA when approving the Basin Project by failing to analyze cumulative impacts to sensitive species. Sierra Forest also argues that the 2004 Framework violates NFMA by failing to maintain viable populations of old forest wildlife. Sierra Forest further argues that the Basin Project specifically violates NFMA by failing to comply with the 2004 Framework's management indicator species monitoring requirement, despite a 2007 Amendment to the 2004 Framework that purports retroactively to eliminate the monitoring requirement. Both Sierra Forest and California also contend that the district court abused its discretion when considering the equitable factors governing entry of a permanent injunction. The Forest Service and numerous intervenors contest these assertions and assert several procedural bars to relief.

For the reasons that follow, a majority affirms the district court's decision on the merits of Sierra Forest and California's NEPA claim. Specifically, we hold that Sierra Forest and California have standing to assert a facial NEPA claim against the 2004 Framework but that the Framework SEIS adequately addressed short-term impacts to old forest wildlife and disclosed and rebutted public opposition. Similarly, we hold that the Forest Service did not violate NEPA when approving the Basin Project because the Forest Service adequately addressed cumulative impacts of the proposed management action. And we hold that the Forest Service violated NEPA by failing to update the alternatives from the 2001 Framework SEIS to reflect new modeling techniques used in the 2004 Framework SEIS. We vacate, however, the district court's orders granting a limited remedy and remand for reconsideration of the equities of a “substantive” injunction without giving undue deference to government experts. Judge Noonan dissents for the reasons explained in his concurrence in Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1024–26 (9th Cir.2009) (Noonan, J., concurring).

We remand also because we reverse the district court's decision on Sierra Forest's NFMA claim. A majority agrees to reverse, but for differing reasons. Judge Fisher would affirm. Judges Reinhardt and Noonan would reverse. Judge Noonan would reverse for the reasons stated in his previous concurrence in Rey. Judge Reinhardt's holding is narrower, and therefore controls the disposition of this case.1

Judge Reinhardt holds that the Forest Service lacks power retroactively to amend forest plans, so the 2007 Amendment to the 2004 Framework did not change the population monitoring requirements for management indicator species applicable to the Basin Project. We therefore remand for the district court to determine in the first instance whether, when it approved the Project, the Forest Service had complied with the 2004 Framework's population

[646 F.3d 1170]

monitoring requirements. The district...

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143 practice notes
  • California ex rel. Imperial Cnty. Air Pollution Control Dist. v. U.S. Dep't of the Interior, Nos. 12–55856
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 19, 2014
    ...to protect its own ‘proprietary interests' that might be ‘congruent’ with those of its citizens....” Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178 (9th Cir.2011) (per curiam) (quoting City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir.2004) ); see also Douglas, 48 F.3d at 150......
  • State v. Azar, No. 18-15144
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 13, 2018
    ...Legacy v. Sherman , California challenged a forest-management plan that changed the standards governing logging on a parcel of land. 646 F.3d 1161, 1171–72 (9th Cir. 2011). The state's standing to do so was based on future injury resulting from any logging under the plan. Id. at 1178 (maj. ......
  • San Luis & Delta-Mendota Water Auth. & Westlands Water Dist. v. Jewell, Case No. 1:13–CV–01232–LJO–GSA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 1, 2014
    ...at 572 n. 7, 112 S.Ct. 2130). NEPA claims are subject to this relaxed “procedural injury” standard, see Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178 (9th Cir.2011), as are alleged violations of ESA § 7(a)(2)'s consultation requirement. Jewell, 749 F.3d at 783. [52 F.Supp.3d 1040] To......
  • Natural Res. Def. Council v. Pritzker, No. C–12–05380 EDL
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 28, 2014
    ...944 F.Supp.2d at 986–87. The Salix court relied on Ninth Circuit authority on standing to hold:Under Sierra Forest Legacy [v. Sherman, 646 F.3d 1161, 1179 (9th Cir.2011) ] and Pacific Rivers [Council v. United States Forest Service, 689 F.3d 1012 (9th Cir.2012) ], plaintiffs may challenge a......
  • Request a trial to view additional results
142 cases
  • California ex rel. Imperial Cnty. Air Pollution Control Dist. v. U.S. Dep't of the Interior, Nos. 12–55856
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 19, 2014
    ...to protect its own ‘proprietary interests' that might be ‘congruent’ with those of its citizens....” Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178 (9th Cir.2011) (per curiam) (quoting City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir.2004) ); see also Douglas, 48 F.3d at 150......
  • State v. Azar, No. 18-15144
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 13, 2018
    ...Legacy v. Sherman , California challenged a forest-management plan that changed the standards governing logging on a parcel of land. 646 F.3d 1161, 1171–72 (9th Cir. 2011). The state's standing to do so was based on future injury resulting from any logging under the plan. Id. at 1178 (maj. ......
  • San Luis & Delta-Mendota Water Auth. & Westlands Water Dist. v. Jewell, Case No. 1:13–CV–01232–LJO–GSA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 1, 2014
    ...at 572 n. 7, 112 S.Ct. 2130). NEPA claims are subject to this relaxed “procedural injury” standard, see Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178 (9th Cir.2011), as are alleged violations of ESA § 7(a)(2)'s consultation requirement. Jewell, 749 F.3d at 783. [52 F.Supp.3d 1040] To......
  • Natural Res. Def. Council v. Pritzker, No. C–12–05380 EDL
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 28, 2014
    ...944 F.Supp.2d at 986–87. The Salix court relied on Ninth Circuit authority on standing to hold:Under Sierra Forest Legacy [v. Sherman, 646 F.3d 1161, 1179 (9th Cir.2011) ] and Pacific Rivers [Council v. United States Forest Service, 689 F.3d 1012 (9th Cir.2012) ], plaintiffs may challenge a......
  • Request a trial to view additional results
1 books & journal articles
  • Developments in Standing for Public Lands and Natural Resources Litigation
    • United States
    • Environmental Law Reporter Nbr. 48-12, December 2018
    • December 1, 2018
    ...have applied a form of “special solicitude” to tribes under Massachusetts . 209 In evaluating 204. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178, 41 ELR 20193 (9th Cir. 2011): States are also not “normal litigants for the purposes of invoking federal jurisdiction.” [ Massachusetts v.......

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