Indian Gaming Act and NEPA Irreconcilable, Ninth Circuit Rules

The Ninth Circuit has held that the National Indian Gaming Commission’s approval of a tribal gaming ordinance does not require review under the National Environmental Policy Act because there is an irreconcilable conflict between NEPA and the Indian Gaming Regulatory Act.  Jamul Action Committee v. Chaudhuri, No. 15-16021 (9th Cir., June 9, 2016). The Indian … Continue Reading

The Importance of Independence: The Ninth Circuit Provides Helpful Clarification on Connected Actions in the Energy Project Development Context

The Ninth Circuit Court of Appeals has held that a right-of-way for an access road over Bureau of Land Management (BLM) land to connect a wind project to a state highway did not trigger formal consultation under the Endangered Species Act because the proposed access road would not have significant impacts to the environment. Sierra … Continue Reading

All About Drakes Bay and Oysters, Little Oysters.

In a case the court described as pitting “an oyster farm, oyster lovers and well-known ‘foodies’ against environmentalists,” the Ninth Circuit has upheld denial of a preliminary injunction against the Interior Secretary’s decision not to extend a permit for commercial oyster farming at Point Reyes National Seashore.  Drakes Bay Oyster Company v. Jewell, No. 13-15222 (Ninth … Continue Reading

Ninth Circuit Clarifies ESA’s “Cumulative Effects” Requirement

The Ninth Circuit Court of Appeals has confirmed two important points under the federal Endangered Species Act:  A “cumulative effect” under the ESA is different from a “cumulative impact” under NEPA No “cumulative effects” analysis is required in informal ESA section 7 consultations. Conservation Congress v. U.S. Forest Service, No. 12-16452 (9th Cir. 2013).  The … Continue Reading

Fracking in California? Not so fast, says federal court

Friends and foes of fracking in California have, for the most part, fought their battles in the policy and legislative arenas.  But the federal district court in San Jose recently chimed in, striking down four oil and gas leases issued by the Bureau of Land Management for 2,700 acres of federal lands overlying the Monterey … Continue Reading

Supreme Court Agrees To Review Ninth Circuit NEPA Decision

 On March 18, the U.S. Supreme Court decided to hear the case of United States Forest Service v. Pacific Rivers Council, in which the Ninth Circuit overturned an Environmental Impact Statement for a 2004 amendment to a programmatic framework governing a series of logging plans for national forest lands in the Sierra Nevada Mountains. The … Continue Reading

Federal Agency May Adopt Project that Combines Elements from Several Alternatives Studied in an Environmental Impact Statement

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 … Continue Reading

Ninth Circuit Emphasizes Deference to Federal Agencies under NEPA

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. … Continue Reading

Ninth Circuit Upholds Analysis of Narrow Range of Alternatives in EIS

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 that … Continue Reading

To Consult or Not To Consult – That Is the Question for the Ninth Circuit

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 … Continue Reading