The U.S. Forest Service Gets a Mixed Bag from the U.S. Supreme Court

On Monday, the U.S. Supreme Court agreed to review the process by which the federal government measures the environmental impact of its land use plans, granting the U.S. Forest Service's appeal of a controversial Ninth Circuit decision which found a forest plan deficient for failing to analyze its impact on area fish species.  (See United States Forest Service et al. v. Pacific Rivers Council et al., 689 F.3d 1012 (2012), cert. granted and motion granted 2013 U.S. LEXIS 2177 (U.S., Mar. 18, 2013).)  The Forest Service argued that it had been held to an unfair standard because a broad programmatic environmental impact statement conducted for the proposed changes covering 11.5 million acres near the Sierra Nevada isn't required to go into as detailed an analysis as a study tied to a specific project..  The Forest Service also asserted that requiring such detailed analysis for a programmatic environmental document would increase compliance costs and slow the review process. 

The same day, the Supreme Court declined to review a controversial Ninth Circuit ruling that the U.S. Forest Service violated the Endangered Species Act by approving a small-scale gold prospecting operation in the Klamath River without consulting wildlife agencies.  (See The New 49′ers, Inc. v. Karuk Tribe of California, 681 F.3d 1006 (2012), cert. denied 2013 U.S. LEXIS 2256 (U.S., Mar. 18, 2013).)  The Ninth Circuit (en banc) determined that the Forest Service ranger’s approval of the prospector’s “notice of intent” to engage in mining activities which included sucking up sediment from the riverbed to look for gold, an activity that would likely negatively impact endangered salmon in the river, constituted a discretionary act triggering the consultation requirement under the Endangered Species Act.