The Ninth Circuit Court of Appeals has vacated a consent decree that provided a remedy in a challenge to the Northwest Forest Plan (NFP), a forest management rule jointly issued by the Bureau of Land Management, Forest Service and Fish and Wildlife Service. Conservation Nw. v. Sherman, No. 11-35729 (9th Cir. 4/25/13).
Noting that management of NFP forests has been subject to “extensive and growing” litigation initiated by both environmental groups and forest product entities, the court states, “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 [and] was intended as ‘a truce between conservationists and logging concerns.’”
Here, several environmental groups challenged the agencies’ decision to eliminate a part of the NFP called “survey and manage,” adopted to assess “the impact of logging on approximately 400 little-known but ecologically crucial species.” D.R. Johnson Lumber Co. intervened as a defendant. The district court found that the agencies’ decision to eliminate survey-and-manage requirements did not comply with the National Environmental Policy Act, but declined to order a remedy. The agencies and environmental group plaintiffs negotiated a resolution that would revise the way the survey-and-manage program works. The intervenor was not included in those discussions and challenged the district court’s approval of a consent decree that embodied the negotiated resolution.
The Ninth Circuit held that the NFP survey-and-manage program can be changed only through notice-and-comment rulemaking and that the district court’s approval of the consent decree short-circuited the required rulemaking process. The appellate court remanded the case to the district court for further action.