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Great News - SCOTUS will hear the Pacific Rivers case!


Dayton, NV
This is important to all Californians and maybe the entire US.

[h=1]U.S. Supreme Court Grants Review in Pacific Rivers Council Case[/h] March 18, 2013

by Richard Frank

Today the U.S. Supreme Court granted certiorari in a major forestry and NEPA case from the Ninth Circuit Court of Appeals: U.S. Forest Service v. Pacific Rivers Council, No. 12-623. The case will be argued and decided in the Court’s next (2013-14) Term.

The issues the justices have agreed to consider in Pacific Rivers Council are threefold: 1) whether the environmental challengers to the 2004 Forest Service Plan directing USFS’s management of the 11 national forests in the Sierra Nevada range have legal standing to bring their lawsuit; 2) whether the environmental challenge is ripe for judicial review; and 3) whether the environmental impact statement prepared by the Forest Service in connection with its Plan Amendments is legally adequate under the National Environmental Policy Act (NEPA).

I previously wrote about the Pacific Rivers Council case when the Ninth Circuit ruled in favor of the environmentalists’ NEPA-based challenge in February 2012. In that Ninth Circuit decision, Judge William Fletcher ruled for a divided 2-1 panel that the environmentalists possessed Article III standing to sue; and that the Forest Service’s NEPA analysis was deficient in part. (The Ninth Circuit did not address the ripeness argument featured in the government’s successful petition for certiorari.) As discussed in my earlier post, I was particularly enamored of Judge Fletcher’s castigation of the Forest Service for what he called the agency’s “obfuscating bureaucratese” in the EIS that undermined its usefulness as a public informational document.

That said, I’m not at all optimistic that the Supreme Court will uphold the Ninth Circuit’s decision in Pacific Rivers Council, for at least four reasons.

First, in a largely unbroken series of Article III standing decisions going back to Justice Scalia’s infamous 1992 decision in Lujan v. Defenders of Wildlife, the Court has repeatedly interpreted constitutional standing principles to bar environmental organizations from pursuing their legal grievances in federal court.

Second, legal scholars and observers from across the political spectrum generally agree that the Court’s ripeness jurisdiction is hopelessly muddled and suspiciously result-oriented.

Third, it’s by now well known that environmental organizations have never prevailed before the justices in a NEPA challenge brought against the government in the 43-year history of this landmark federal statute.

Fourth and finally, this petition for certiorari emanates from the Ninth Circuit, whose environmental decisions rarely find favor–or affirmance–in the Supreme Court.

The Pacific Rivers Council case will be argued this fall, with a decision from the justices likely to be issued early in 2014.


Dayton, NV
Here is the Sacramento Bee Version LOL

High court takes crucial Sierra case

By Michael Doyle

Bee Washington Bureau

Last Modified: Tuesday, Mar. 19, 2013 - 8:18 am

WASHINGTON – A long-running Sierra Nevada forest planning dispute will now be settled by the Supreme Court in what could shape up as a crucial public lands case.

On Monday, the court agreed to referee the dispute pitting environmentalists with the Portland, Ore.-based Pacific Rivers Council against the U.S. Forest Service over decision-making that dates back to the second Bush administration.

While the specific case involves 11 Sierra Nevada forests, the eventual outcome could shape everything from who gets to file lawsuits to the scope of future environmental studies.

"Definitely, throughout the West, this could have huge impacts on the moving of projects forward," Dustin Van Liew, executive director of the conservative Public Lands Council in Washington, D.C., said Monday.

One key question confronting the court will be whether environmentalists have the "standing" to sue against a general forest plan, as opposed to a specific project proposal, by virtue of their making recreational use of the national forests. To gain standing in federal court, individuals must show they have been injured or face imminent injury.

A second major question is how extensively detailed the Forest Service must be when preparing overarching management plans, such as the one governing the 11 Sierra Nevada forests.

"The only role for a court is to insure that the agency has taken a 'hard look' at the environmental consequences of its proposed action," Pacific Rivers Council's attorneys said in a legal brief, adding that "agencies cannot take a 'hard look' unless they have reasonably identified the consequences of their actions."

Underscoring the case's potential significance, the Public Lands Council and the affiliated National Cattlemen's Beef Association secured Supreme Court permission Monday to file a brief opposing the environmental group. Many more briefs, from both sides, are sure to come.
The court's decision to hear the Sierra Nevada case, sometime during the 2013 term that starts in October, means that at least four of the court's nine justices agreed to reconsider a 9th Circuit Court of Appeals decision from last year in which environmentalists prevailed.
In that 2-1 appellate court decision, the 9th Circuit panel concluded the Forest Service in 2004 failed to adequately study the effect of dramatically revised forest plans on Sierra Nevada fish populations.

"The Forest Service provided no analysis despite the fact that the 2004 (plan) allows much more logging, burning, road construction and grazing," Judge William A. Fletcher wrote for the appellate panel.

The planning, and required federal environmental impact statements, cover nearly 11.5 million acres of Forest Service land stretching from Southern California to the California-Oregon border. Taken together, the Sequoia, Inyo, Sierra, Stanislaus, Humboldt-Toiyabe, Eldorado, Tahoe, Plumas, Lassen and Modoc national forests, and the Lake Tahoe Basin Management Unit, encompass more than 5 percent of all land managed by the Forest Service nationwide.

When presidents have changed, so have the Sierra Nevada forest plans.

The Clinton administration issued one Sierra Nevada plan in January 2001, about a week before President Bill Clinton left office. The President George W. Bush administration then scrapped that plan, and issued another in 2004.

The 2004 Bush plan called for harvesting 4.9 billion more board-feet of timber than under the 2001 Clinton plan. The Bush plan also called for constructing 90 more miles of new roads, reconstruction of 855 more miles of existing roads and a loosening of restrictions on grazing. Bush's supporters in the timber and cattle industries, among others, supported the changes, while environmentalists warned of the dangers.

"My first Sierra Nevada backpacking trip was to the Mineral King area in 2000, during which time I also fished," Pacific Rivers Council Chairman Bob Anderson, a South Lake Tahoe resident, said in a court declaration used to establish injury and standing. "I plan to continue these activities as long as the management of Sierra Nevada national forests does not prevent me from doing so."

When presidents have changed, so have the Sierra Nevada forest plans. The Clinton administration issued one in January 2001. The Bush administration scrapped that plan in 2004.