U.S. Supreme Court Grants Review of Plan By Forest Service to Manage Sierra Nevada

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By Robert C. Cook  

The U.S. Supreme Court agreed March 18 to review a long-running battle over a 2004 management plan for 11 national forests in California's Sierra Nevada Range (U.S. Forest Service v. Pacific Rivers Council, U.S., No. 12-623, 3/18/13).

The Forest Service had sought review of a February 2012 ruling from the U.S. Court of Appeals for the Ninth Circuit that was reaffirmed by the court in June. The appeals court held that the Forest Service failed to adequately evaluate the management plan's impact on fish species.

Increased Logging, Increased Grazing Under Plan

The petition for Supreme Court review comes in a 2005 lawsuit filed by the Pacific Rivers Council challenging an updated forest plan that covers 11.5 million acres. The plan called for increased logging and eased requirements for grazing permits.

Federal attorneys representing the Forest Service asked three questions in their petition to the court:

• whether the Pacific Rivers Council had standing to sue when it failed to establish that any updated elements of the plan posed an imminent threat of harm to any of its members,

•  whether the challenge was ripe because the plaintiff failed to identify any site-specific project that would be authorized by the updated plan, and

• whether the National Environmental Policy Act requires an analysis of every type of environmental effect for amendments to the plan when any project authorized under the plan would require a separate environmental analysis.

The Ninth Circuit panel held the Forest Service did not take a “hard look” at the effects of the 2004 amendments on fish, as required by NEPA.

In its March 18 order, the U.S. Supreme Court also granted the motion by the Public Lands Council and National Cattlemen's Beef Association to file a brief as friend of the court.

Argument Anticipated Before June 30

The U.S. Supreme Court is expected to hear oral arguments in the case before the end of its term in June.

An affidavit attached to court pleadings stated that members of the Pacific Rivers Council are “harmed” by the current management direction of Sierra Nevada National forests. Bob Anderson, chairman of the board of Pacific Rivers Council, stated in the affidavit that he had witnessed dramatic declines in species such as salmon and steelhead due to harmful past management practices.

Anderson stated that the 2004 framework “builds on the mistakes of the past.”

“Curtailed fishing and recreational opportunities due to the loss of native species such as bull trout and salmon have also injured me,” Anderson swore in his affidavit.

The Ninth Circuit opinion was written by William A. Fletcher and joined by Stephen Reinhardt.

The dissent was by Judge N.R. Smith, who said, “I would appropriately defer to the Forest Service's reasonable decision and affirm.”

Attorneys for the U.S. Forest Service included Donald B. Verrilli Jr., solicitor general, and Justice Department attorneys Ignacia S. Moreno, Edwin S. Kneedler, Sarah E. Harrington, Andrew C. Mergen, Jennifer Scheller Neumann, and Barclay Samford.

Ramona E. Romero, general counsel of the Department of Agriculture, also participated.

Attorneys on the brief in opposition were James A. Feldman, Stephanos Bibas, and Nancy Bregstein Gordon, of the University of Pennsylvania Law School Supreme Court Clinic.

Additional attorneys on the brief in opposition were Scott L. Nelson, of Public Citizen Litigation Group, Washington and Brian Gaffney, of Lippe Gaffney Wagner LLP, San Francisco, Calif.

By Robert C. Cook