Forest Plan May Remain In Place While Forest Service Corrects NEPA Deficiency

Pacific Rivers Council v. U.S. Forest Service, et al.

(2013) __ F.Supp.2d __

In a case involving the appropriate remedy to address National Environmental Policy Act (“NEPA”) violations, the United States District Court for the Eastern District of California recently decided that the U.S. Forest Service’s (“USFS”) 2004 plan for managing 11.5 million acres of California forest could remain in place while the agency corrects a deficiency in its NEPA-required Supplemental Environmental Impact Statement.

This case arises out of a challenge by the Pacific Rivers Council against the USFS’ 2004 Sierra Nevada Forest Plan Amendment (called the “2004 Framework”). The 2004 Framework is the USFS’ plan for balancing the “protection of wildlife with effective reduction of hazardous fuels in order to reduce the risk of stand-replacing wildfire” in 11 national forests of California’s Sierra Nevada region. (Pacific Rivers Council v. U.S. Forest Service, et al. (2013) WL 1813734.)

The District Court’s decision, which followed a 2012 opinion by the Ninth Circuit, concluded the 2004 Framework “adequately addressed impacts to amphibians…but failed to adequately address impacts to individual fish species.” (Id. at1-2.) The District Court received the case on remand to determine the proper remedy, and considered Plaintiffs’ broad injunctive request to order the USFS to reinstate the older 2001 Framework, and stop practically all current project activity, timber sales, and permit issuances inconsistent with the 2001 plan.

The Court noted that NEPA violations are subject to equity principles. And, although the equitable remedy of vacatur is available to the court, it is not a mandatory remedy. The Court evaluated the seriousness of the USFS’ error, and how disruptive it would be to revert back to the 2001 Framework for the interim. The Court determined the USFS’ error in the SEIS was not a serious one, because the effect of the 2004 Framework on fish would be the same as the effect of the alternatives addressed in the 2001 Framework. The Court also concluded that “while the 2004 SEIS did not provide an analysis of impacts to individual fish species, it did analyze the effects of the 2001 and 2004 Frameworks on aquatic ecosystems – where fish live.” (Id. at 6.) This analysis, the Court held, mitigated the USFS’ NEPA violation and did not warrant vacatur.

Other factors persuaded the Court, including the fact that the 2004 Framework had been in place for eight years, was environmentally preferable, and vacating the framework would have extremely disruptive consequences to the USFS and the general public. The Court’s decision emphasized that even in spite of a NEPA violation, it is preferable to keep the environmentally-superior and less-disruptive plan in place while the agency corrects the minor deficiency. Similarly, a California Appellate Court in Golden Gate Land Holdings LLC v. East Bay Regional Park District ruled that project approvals can remain in place while lead agencies cure CEQA violations.

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