Two Bush administration policies for managing national forests were invalidated by the Ninth U.S. Circuit Court of Appeals in early August.

One three-judge panel blocked implementation of a 2004 amendment to the Sierra Nevada Framework that governs all 11 national forests in the mountain range. A second panel rejected the Forest Service's attempt to eliminate a Clinton-era rule prohibiting development in designated roadless areas of national forests. The court ruled that the Forest Service violated the National Environmental Policy Act (NEPA) and the Endangered Species Act by not conducting required environmental reviews.

The first case involved the Sierra Nevada Framework, which was adopted during the final days of the Clinton presidency. Backed primarily by environmentalists and community groups, the framework reduced permissible logging levels by about one-third by limiting the size of trees that may be cut. The plan was intended to prevent the court-ordered shut down of logging, as occurred in Oregon and Washington during the 1980s and 1990s (see CP&DR Environment Watch, April 2005, March 2001).

The Bush-era Forest Service amended the framework to permit logging of much larger trees. The increased logging would generate money for forest-thinning projects to reduce fire danger. Environmental groups sued, arguing the Forest Service violated NEPA, but District Court Judge Morrison England declined to issue a preliminary injunction to block the amendment. Last year, a Ninth Circuit panel overturned England and issued the preliminary injunction (Sierra Forest Legacy v. Rey, 526 F3d 1228). The administration asked for a new hearing, and the same panel reconsidered in light of new standards for a preliminary injunction established in an unrelated case by the U.S. Supreme Court (Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008)).

In its latest decision, the Ninth Circuit still held that a preliminary injunction was appropriate. The Forest Service in 2004 should not have relied on the environmental impact statement for the 2001 framework because the Forest Service's own modeling techniques had changed and because the 2004 amendment "introduced substantially new objectives" to the framework, according to the court.

England has since ruled for the environmentalists in their NEPA claim. The Ninth Circuit said the judge should now consider whether to block implementation of the 2004 amendment permanently.

The second case involved Bush administration efforts to repeal the "roadless rule" for millions of acres of national forests. Also promulgated during the final days of the Clinton administration, the rule barred most road building, logging, mining and drilling from inventoried roadless areas. Instead, the Bush administration in 2005 adopted the "state petitions rule," which allowed individual states to determine how to manage roadless areas of national forests within each state. The Forest Service declared the new rule categorically exempt from review under NEPA and the Endangered Species Act because the rule was merely a procedural change.

In litigation involving numerous states and interest groups, Magistrate Judge Elizabeth Laporte in 2006 blocked the Forest Service from implementing the new rule and ordered the 2001 roadless rule reinstated. In a blunt opinion, the Ninth Circuit upheld Laporte's decision.

"By permanently removing the roadless rule from the Code of Federal Regulations, the state petitions rule did much more than establish a new procedure for consideration of state-specific land management rules: It purported to ensure that future land management decisions would never again be constrained by the roadless rule and its enhanced protections for inventoried roadless areas," Judge Robert Beezer wrote for the court. "It was unreasonable for the USDA to characterize the permanent repeal of these substantive protections as ‘merely procedural' and within the scope of the cited categorical exclusion."

Other litigation over how to manage roadless national forest areas continues. In the meantime, the Ninth Circuit decision applies nationwide.

First Case:
Sierra Forest Legacy v. Rey, No. 07-16892, 2009 DJDAR 12032. Filed August 13, 2009.
The Lawyers:
For Sierra Forest Legacy: David Edelson, (510) 527-4116.
For the Forest Service: Jennifer Scheller, U.S. Department of Justice Environment and Natural Resources Division, (202) 514-2000.

Second Case:
People v. U.S. Dept. of Agriculture, No. 07-15613, 2009 DJDAR 11669. Filed August 5, 2009.
The Lawyers:
For the People: Claudia Polsky, California attorney general's office, (510) 540-3951.
For the Forest Service: John Smeltzer, U.S. Department of Justice, (202) 514-2000.