In approving a project to repair a flood-damaged road in a national forest in Nevada, the U.S. Forest Service adopted a “Selected Alternative” that combined elements from three different alternatives that were evaluated in the Environmental Impact Statement for the project.  In upholding the Forest Service’s approval, the Ninth Circuit rejected the project opponents’ claims

On March 5, 2013, the Council on Environmental Quality released a handbook intended to help agencies and practitioners coordinate environmental reviews under the National Environmental Policy Act with overlapping review requirements under the California Environmental Quality Act.  It also released a separate handbook on coordination of review under NEPA and the National Historic Preservation Act.

In two recent cases involving challenges to U.S. Forest Service projects under the National Environmental Policy Act, the Ninth Circuit emphasized that courts must accord substantial deference to the environmental analysis conducted by federal agencies.  Earth Island Institute v. U.S. Forest Service (9th Cir. Sept. 20, 2012), and Native Ecosystems Council v. Weldon (9th Cir.

The Chukchi Sea off the North Slope of Alaska is a promising place for oil and gas development.  But it’s also home to polar bears and walruses.  This clash of interests led to a lawsuit by two environmental groups against the Fish & Wildlife Service, decided by the Ninth Circuit in the Service’s – and

An alternatives analysis under NEPA may be valid even though only two very similar alternatives to the project are considered.  In League of Wilderness Defenders-Blue Mountains Biodiversity Project v. United States Forest Service, the Ninth Circuit upheld an Environmental Impact Statement for an experimental forest thinning project in Oregon.  The court rejected the claim

In Pacific Rivers Council v. United States Forest Service, the Ninth Circuit struck down an Environmental Impact Statement prepared for a logging plan in the Sierra Nevada Mountains.  The court ruled that the EIS did not adequately evaluate the project’s impacts on fish species. 

In 2001, the Forest Service prepared a Final EIS, which

The Ninth Circuit is at center stage again in the debate over the interpretation and enforcement of federal environmental laws.

In a sharply divided 7-4 en banc decision, the Ninth Circuit ruled that the U.S. Forest Service violated the Endangered Species Act (ESA) by allowing recreational gold mining activities in the Klamath National Forest in Northern California without consulting with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service regarding the potential impacts to protected species such as the threatened Coho salmon.   Karuk Tribe of California v. United States Forest Service.

The June 1 decision—noteworthy for its broad definition of “agency action” for purposes of the ESA’s consultation requirement—reversed an earlier decision by a three-judge panel of the Ninth Circuit.  The panel decision followed a long line of prior court decisions in holding there was no duty to consult.   The mining activities at issue were already authorized by federal law (the General Mining Law of 1872) and the applicants were required only to submit a Notice of Intent (NOI), which notifies the Forest Service of the proposed activities but does not trigger the need for any affirmative agency approval.  The panel ruled that the Forest Service’s decision not to require a more detailed Plan of Operations—which is needed where the Service determines that significant environmental disturbance is likely—amounts to a decision not to act and is therefore not agency action that triggers consultation.

But after hearing the matter en banc, the Ninth Circuit reversed its earlier decision and concluded that consultation was required.  According to the majority opinion, the Forest Service makes a discretionary, affirmative approval when it accepts an NOI, determines that no Plan of Operations is needed, and allows the proposed mining activities to proceed. 
Continue Reading To Consult or Not To Consult – That Is the Question for the Ninth Circuit