FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIERRA FOREST LEGACY; CENTER FOR
BIOLOGICAL DIVERSITY; NATURAL
RESOURCES DEFENSE COUNCIL;
SIERRA CLUB; THE WILDERNESS
SOCIETY, INC.,
Plaintiffs-Appellants
v.
HARRIS SHERMAN, in his official
capacity as Under Secretary for
Natural Resources and
Environment, U.S. Department of
Agriculture; TOM TIDWELL, in his
official capacity as Chief of the
U.S. Forest Service; RANDY
MOORE, in his official capacity as
Regional Forester, U.S. Forest
Service Region 5; ALICE CARLTON,
in her official capacity as Forest
Supervisor, Plumas National
Forest; QUINCY LIBRARY GROUP,
Defendants-Appellees,
AMERICAN FOREST & PAPER
ASSOCIATION; AMERICAN FOREST
RESOURCE COUNCIL;
6903
6904 SIERRA FOREST LEGACY v. SHERMAN
BLUERIBBON COALITION; CALIFORNIA
EQUESTRIAN TRAILS & LANDS
COALITION; CALIFORNIA FOREST
COUNTIES SCHOOLS COALITION;
CALIFORNIA FORESTRY ASSOCIATION;
CALIFORNIA LICENSED FORESTERS
ASSOCIATION; CALIFORNIA/ NEVADA
SNOWMOBILE ASSOCIATION;
COARSEGOLD RESOURCE
CONSERVATION DISTRICT;
HUNTINGTON LAKE ASSOCIATION; No. 09-17796
HUNTINGTON LAKE BIG CREEK
D.C. No.
HISTORICAL CONSERVANCY;
KLAMATH ALLIANCE FOR RESOURCES 2:05-cv-00205-
MCE-GGH
& ENVIRONMENT; REGIONAL
COUNCIL OF RURAL COUNTIES;
SIERRA RESOURCE CONSERVATION
DISTRICT; STRAWBERRY PROPERTY
OWNER’S ASSOCIATION; TULARE
COUNTY RESOURCE CONSERVATION
DISTRICT; TUOLUMNE COUNTY
ALLIANCE FOR RESOURCES &
ENVIRONMENT; WESTERN COUNCIL OF
INDUSTRIAL WORKERS; CALIFORNIA
CATTLEMEN’S ASSOCIATION,
Defendants-Intervenors-Appellees.
SIERRA FOREST LEGACY v. SHERMAN 6905
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF
AGRICULTURE; TOM VILSAK,
Secretary, Department of
Agriculture; HARRIS SHERMAN,
Under Secretary for Natural
Resources and Environment, U.S.
Department of Agriculture; UNITED
STATES FOREST SERVICE; TOM
TIDWELL, Chief, U.S. Forest
Service; RANDY MOORE, Regional
Forester, Pacific Southwest
Region, U.S. Forest Service,
Defendants-Appellees,
QUINCY LIBRARY GROUP; AMERICAN
FOREST & PAPER ASSOCIATION;
AMERICAN FOREST RESOURCE
COUNCIL; BLUERIBBON COALITION;
CALIFORNIA EQUESTRIAN TRAILS &
LANDS COALITION; CALIFORNIA
FOREST COUNTIES SCHOOLS
COALITION; CALIFORNIA LICENSED
FORESTERS ASSOCIATION;
6906 SIERRA FOREST LEGACY v. SHERMAN
CALIFORNIA/NEVADA SNOWMOBILE
ASSOCIATION; COARSEGOLD
RESOURCE CONSERVATION DISTRICT;
HUNTINGTON LAKE ASSOCIATION;
HUNTINGTON LAKE BIG CREEK
HISTORICAL CONSERVANCY;
KLAMATH ALLIANCE FOR RESOURCES No. 10-15026
& ENVIRONMENT; REGIONAL D.C. Nos.
COUNCIL OF RURAL COUNTIES; 2:05-cv-00211-
SIERRA RESOURCE CONSERVATION MCE-GGH
DISTRICT; STRAWBERRY PROPERTY 2:05-cv-00205-
OWNERS’ ASSOCIATION; TULARE MCE-GGH
COUNTY RESOURCE CONSERVATION 2:05-cv-00905-
DISTRICT; TUOLUMNE COUNTY MCE-GGH
ALLIANCE FOR RESOURCES & OPINION
ENVIRONMENT; WESTERN
COUNCIL OF INDUSTRIAL WORKERS;
CALIFORNIA FORESTY ASSOCIATION;
CALIFORNIA CATTLEMEN’S
ASSOCIATION,
Defendants-Intervenors-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
July 8, 2010—Pasadena, California
Filed May 26, 2011
Before: Stephen Reinhardt, John T. Noonan, Jr. and
Raymond C. Fisher, Circuit Judges.
SIERRA FOREST LEGACY v. SHERMAN 6907
Per Curiam Introduction;
Section I-VI by Judge Fisher;
Section VII by Judge Reinhardt;
Judge Fisher Dissenting in Part;
Judge Noonan Concurring in Part and Dissenting in Part
SIERRA FOREST LEGACY v. SHERMAN 6911
COUNSEL
Gregory C. Loarie (argued), Oakland, California, and Patrick
Gallagher, San Francisco, California, for plaintiffs-appellants
Sierra Forest Legacy, Center for Biological Diversity, Natural
Resources Defense Council, Sierra Club and The Wilderness
Society, Inc.
Edmund G. Brown, Jr., Attorney General of California, Sally
Magnani and Janill L. Richards (argued), Supervising Deputy
Attorneys General, Oakland, California, for plaintiff-appellant
State of California.
Ignacia S. Moreno, U.S. Assistant Attorney General, Barclay
Samford, Robert H. Oakley and Jennifer Scheller Neumann
(argued), U.S. Department of Justice, Environment and Natu-
ral Resources Division, Washington, D.C., and James L.
Rosen, U.S. Department of Agriculture, Office of General
Counsel, San Francisco, California, for defendants-appellees
United States Department of Agriculture, United States Forest
Service, Tom Vilsack, Harris Sherman, Tom Tidwell, Randy
Moore and Alice Carlton.
Michael B. Jackson (argued), Quincy, California, for
defendant-appellee and defendant-intervenor-appellee Quincy
Library Group.
6912 SIERRA FOREST LEGACY v. SHERMAN
Thomas R. Lundquist (argued) and J. Michael Klise, Wash-
ington, D.C., for defendants-intervenors-appellees American
Forest and Paper Association, American Forest Resource
Council, Blueribbon Coalition, California Equestrian Trails
and Lands Coalition, California Forest Counties Schools
Coalition, California Forestry Association, California
Licensed Foresters Association, California/Nevada Snowmo-
bile Association, Coarsegold Resource Conservation District,
Huntington Lake Association, Huntington Lake Big Creek
Historical Conservancy, Klamath Alliance for Resources and
Environment, Regional Council of Rural Counties, Sierra
Resource Conservation District, Strawberry Property Owners’
Association, Tulare County Resource Conservation District,
Tuolumne County Alliance for Resources and Environment
and Western Council of Industrial Workers.
William J. Thomas (argued) and Anthony Van Ruiten, Sacra-
mento, California, for defendant-intervenor-appellee Califor-
nia Cattlemen’s Association.
OPINION
PER CURIAM:
This appeal concerns whether the process of establishing
management guidelines governing 11.5 million acres of fed-
eral land in the Sierra Nevada region complied with both the
procedural requirements of the National Environmental Policy
Act (NEPA) and the substantive restrictions of the National
Forest Management Act (NFMA). Sierra Forest Legacy, the
Center for Biological Diversity, the Natural Resources
Defense Council, the Sierra Club and the Wilderness Society
(collectively “Sierra Forest”) appeal a largely unfavorable
summary judgment against them and a favorable but limited
remedial order in their NEPA and NFMA suit challenging the
2004 Sierra Nevada Forest Plan Amendment (“the 2004
SIERRA FOREST LEGACY v. SHERMAN 6913
Framework”) and the Basin Project, a timber harvesting proj-
ect approved under the 2004 Framework. The State of Cali-
fornia also appeals a summary judgment against it and a
limited remedial order in a related NEPA action. The district
court found that the U.S. Forest Service and related federal
defendants (collectively “the Forest Service”) violated NEPA
by failing to consider alternative actions using the same mod-
eling techniques and management priorities, but the court
rejected several other NEPA and NFMA claims. The district
court ordered the Forest Service to prepare a supplemental
environmental impact statement (SEIS) to remedy the NEPA
error and denied Sierra Forest and California’s requests to
enjoin implementation of the 2004 Framework in the interim.
Sierra Forest and California argue that the Forest Service
violated NEPA both by failing to consider short-term impacts
of the 2004 Framework and by failing to disclose and rebut
expert opposition. Sierra Forest separately contends that the
Forest Service violated NEPA when approving the Basin
Project by failing to analyze cumulative impacts to sensitive
species. Sierra Forest also argues that the 2004 Framework
violates NFMA by failing to maintain viable populations of
old forest wildlife. Sierra Forest further argues that the Basin
Project specifically violates NFMA by failing to comply with
the 2004 Framework’s management indicator species moni-
toring requirement, despite a 2007 Amendment to the 2004
Framework that purports retroactively to eliminate the moni-
toring requirement. Both Sierra Forest and California also
contend that the district court abused its discretion when con-
sidering the equitable factors governing entry of a permanent
injunction. The Forest Service and numerous intervenors con-
test these assertions and assert several procedural bars to
relief.
For the reasons that follow, a majority affirms the district
court’s decision on the merits of Sierra Forest and Califor-
nia’s NEPA claim. Specifically, we hold that Sierra Forest
and California have standing to assert a facial NEPA claim
6914 SIERRA FOREST LEGACY v. SHERMAN
against the 2004 Framework but that the Framework SEIS
adequately addressed short-term impacts to old forest wildlife
and disclosed and rebutted public opposition. Similarly, we
hold that the Forest Service did not violate NEPA when
approving the Basin Project because the Forest Service ade-
quately addressed cumulative impacts of the proposed man-
agement action. And we hold that the Forest Service violated
NEPA by failing to update the alternatives from the 2001
Framework SEIS to reflect new modeling techniques used in
the 2004 Framework SEIS. We vacate, however, the district
court’s orders granting a limited remedy and remand for
reconsideration of the equities of a “substantive” injunction
without giving undue deference to government experts. Judge
Noonan dissents for the reasons explained in his concurrence
in Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1024-26 (9th
Cir. 2009) (Noonan, J., concurring).
We remand also because we reverse the district court’s
decision on Sierra Forest’s NFMA claim. A majority agrees
to reverse, but for differing reasons. Judge Fisher would
affirm. Judges Reinhardt and Noonan would reverse. Judge
Noonan would reverse for the reasons stated in his previous
concurrence in Rey. Judge Reinhardt’s holding is narrower,
and therefore controls the disposition of this case.1
Judge Reinhardt holds that the Forest Service lacks power
retroactively to amend forest plans, so the 2007 Amendment
to the 2004 Framework did not change the population moni-
toring requirements for management indicator species appli-
1
For future cases, however, the holding is not binding authority on
NFMA because there is no common ground between Judges Reinhardt and
Noonan. See Hayes v. Ayers, ___ F.3d ___, 2011 WL 61643, at *15 (Jan.
7, 2011 9th Cir.) (concluding that a fragmented en banc decision of this
court had no binding authority because the determinative vote relied on a
completely distinct rationale) (citing Marks v. United States, 430 U.S. 188,
193 (1977)); FTC v. Wholefoods Market, Inc., 548 F.3d 1028, 1061 n.8
(D.C. Cir. 2008) (Kavanaugh, J., dissenting) (discussing the rarity of a
decision with no precedential value under the Marks principle).
SIERRA FOREST LEGACY v. SHERMAN 6915
cable to the Basin Project. We therefore remand for the
district court to determine in the first instance whether, when
it approved the Project, the Forest Service had complied with
the 2004 Framework’s population monitoring requirements.
The district court should consider the 2004 Framework’s
requirements as they were at the time the Project was
approved, not as the Forest Service represented them to be
following the 2007 Amendment. Sierra Forest’s challenge to
the 2004 Framework itself is not presently ripe for judicial
consideration because the district court has yet to consider
whether the Basin Project complied with the 2004 Framework
as it existed at the time of the Project’s approval. Until the
district court decides whether the Project complies with the
2004 Framework without the 2007 Amendment, it should not
consider Sierra Forest’s facial challenge to that Framework.
Judge Fisher would affirm the district court on the NFMA
claim. He would hold that the Forest Service had power retro-
actively to amend the 2004 Framework and thus that the spe-
cies monitoring claim related to the Basin Project is moot.
Having concluded that the Basin Project complied with the
amended 2004 Framework, Judge Fisher would hold Sierra
Forest’s NFMA challenge to the 2004 Framework is ripe, as
applied in the Basin Project. He would further hold, however,
that the adaptive management provisions of the 2004 Frame-
work applied in the Basin Project do not violate NFMA.
There are thus four separate opinions in this case. First, a
NEPA opinion written by Judge Fisher and joined by Judge
Reinhardt appears as Parts I-VI of the decision. Second, a
NFMA opinion written by Judge Reinhardt appears as Part
VII. Third, a dissent by Judge Fisher on the NFMA issue fol-
lows Part VII. Fourth, an opinion by Judge Noonan concur-
ring in the result on the NFMA issue, and dissenting from the
NEPA opinion, concludes the decision.
6916 SIERRA FOREST LEGACY v. SHERMAN
FISHER, Circuit Judge:
I. Background
A. The 2004 Framework
In January 2001, the U.S. Forest Service completed the
Sierra Nevada Forest Plan Amendment and an accompanying
Rule of Decision (collectively “the 2001 Framework”), the
conclusion of a 10-year comprehensive review process. The
2001 Framework significantly altered guidelines for manage-
ment of 10 national forests and one management unit, which
collectively include 11.5 million acres in the Sierra Nevada
region of California. The 2001 Framework restricted logging
based on overlapping guidelines concerning tree size, canopy
closure and the presence of sensitive species including the
California spotted owl, the northern goshawk (a bird of prey),
the Pacific fisher (a small carnivorous mammal), the pine
marten (another small carnivorous mammal), the willow fly-
catcher (a small bird) and the Yosemite toad. Less than a year
later, the Forest Service began a review of the 2001 Frame-
work to address six new policy priorities: fuel treatments,
compatibility with the National Fire Plan, implementation of
pilot projects outlined in the Herger-Feinstein Quincy Library
Group Forest Recovery Act, 16 U.S.C. § 2104 note (HFQLG
Act), impact on grazing permit holders, impact on recreational
users and impact on local communities.
In 2003, the Forest Service released a draft SEIS explaining
proposed changes to the 2001 Framework. The Forest Service
sought internal review from both its Watershed, Fish, Wild-
life, Air and Rare Plants staff and a science consistency
review team, as well as interagency review from the Environ-
mental Protection Agency and Fish and Wildlife Service. The
State of California also submitted comments on the draft
SEIS. The Forest Service received over 50,000 public com-
ments, including approximately 1,300 individual letters.
Numerous experts presented vigorous critiques of the plan for
SIERRA FOREST LEGACY v. SHERMAN 6917
its lack of emphasis on species preservation and purported
assumptions concerning fire ecology.
In 2004, the Forest Service released the 2004 Sierra Nevada
Forest Plan Amendment and final SEIS. The 2004 Framework
significantly liberalizes management restrictions, most nota-
bly by emphasizing mechanical thinning over controlled
burns and increasing the maximum size of trees subject to
logging from either six or 20 inches diameter at breast height
to 30 inches, subject to minimum canopy retention levels and
maintenance of specified percentages of existing tree volume.
The 2004 Framework maintains specific protections for Cali-
fornia spotted owls both in protected activity centers around
nests and in home range core areas. On the other hand, the
2004 Framework permits broad implementation of the
HFQLG Act, which loosens logging restrictions in specified
areas in order to experiment with fire suppression techniques
such as Community Defense Zones and Defensible Fuel Pro-
file Zones. Finally, the 2004 Framework alters grazing limita-
tions to permit pasture use outside of breeding periods in
areas known to contain willow flycatchers — a small bird —
and Yosemite toads and would allow for site-specific waivers
of any limitation subject to development of local management
plans. The SEIS included over 130 pages of responses to pub-
lic comments.
After the Regional Forester decided to select the 2004
Framework, members of the public submitted 6,241 adminis-
trative appeals. The Chief of the Forest Service denied the
appeals, with instructions that the regional forester provide
supplemental information concerning adaptive monitoring, a
system under which the Forest Service will continuously
assess the effects of management on sensitive species and
adjust practices accordingly. The Under Secretary for Natural
Resources and the Environment affirmed the appeal decision
a few months later.
6918 SIERRA FOREST LEGACY v. SHERMAN
B. Basin Project
Also in 2004, the Forest Service released an environmental
assessment (EA) for the Basin Project, a timber harvesting
project designed to implement the 2004 Framework. The
Basin Project would harvest timber in a 40,000-acre area of
the Plumas National Forest, including limited individual tree
selection and group selection (removal of most trees in one-
half- to two-acre clusters). The EA notes both direct and
cumulative effects on the California spotted owl, northern
goshawk, willow flycatcher and forest carnivores and con-
cludes that “none of [the Basin Project’s] anticipated direct,
indirect, or cumulative effects, considering both context and
intensity, is expected to constitute a significant environmental
effect, as that term is defined in the NEPA regulations.”
(Emphasis in original.)
C. Procedural History
Sierra Forest Legacy, the Center for Biological Diversity,
the Natural Resources Defense Council, the Sierra Club and
the Wilderness Society are membership organizations dedi-
cated to the protection and restoration of the environment.
Their individual members use and enjoy the Sierra Nevada
mountains, including searching for and observing rare wild-
life. The State of California contains numerous national for-
ests and owns large tracts of land in the Sierra Nevada region.
Sierra Forest and California filed separate actions in 2005,
both challenging the adequacy of the 2004 Framework under
NEPA. Sierra Forest additionally asserted violations of
NFMA and attacked specific projects. The federal govern-
ment moved to dismiss California’s complaint for lack of
standing, and the district court granted the motion with leave
to file an amended complaint. See California ex rel. Lockyer
v. U.S. Dep’t of Agric., No. 2:05-cv-0211, 2005 WL 1719892
(E.D. Cal. July 18, 2005) (“California v. USDA I”). California
filed an amended complaint soon thereafter, and the Forest
SIERRA FOREST LEGACY v. SHERMAN 6919
Service did not renew its motion to dismiss. The district court
granted numerous entities defendant-intervenor status in both
cases, including the Quincy Library Group, the American For-
est and Paper Association and the California Cattlemen’s
Association.
The parties in both suits cross-moved for summary judg-
ment. While the motions remained pending, Sierra Forest
filed a motion for a preliminary injunction against implemen-
tation of the 2004 Framework in three specific projects, which
the district court denied from the bench. See Sierra Nevada
Forest Protection Campaign v. Rey, No. 2:05-cv-0205, 2007
WL 3034931, at *1 (E.D. Cal. Oct. 16, 2007) (“Sierra Forest
I”), rev’d sub nom. Sierra Forest Legacy v. Rey, 577 F.3d
1015 (9th Cir. 2009). In a subsequent written opinion, the dis-
trict court found that Sierra Forest was unlikely to succeed on
the merits of its claims, that the three specific projects Sierra
Forest sought to enjoin were unlikely to harm forests or spe-
cies irreparably and that the balance of hardships and public
interest favored permitting the government to carry out log-
ging. See id. at *7-*11.
On appeal, we reversed and remanded. See Sierra Forest
Legacy v. Rey, 526 F.3d 1228 (9th Cir. 2008) (“Sierra Forest
II”), withdrawn and superseded, 577 F.3d 1015 (9th Cir.
2009). Specifically, we held that the district court had abused
its discretion by concluding that “[the Forest Service] com-
plied with NEPA’s requirement to ‘[r]igorously explore and
objectively evaluate all reasonable alternatives.’ ” Id. at 1233
(quoting 40 C.F.R. § 1502.14(a) (2000)). We additionally
concluded that at an interim stage the equities favored Sierra
Forest and instructed the district court “to grant immediately
a preliminary injunction on the three proposed projects to the
extent that they are inconsistent with the 2001 [Framework].”
Id. at 1233-34.
In response to a petition for panel rehearing and the
Supreme Court’s opinion in Winter v. Natural Resources
6920 SIERRA FOREST LEGACY v. SHERMAN
Defense Council, Inc., 129 S. Ct. 365 (2008), we withdrew
Sierra Forest II and issued a superseding opinion. See Sierra
Forest Legacy v. Rey, 577 F.3d 1015 (9th Cir. 2009) (“Sierra
Forest IV”). We reiterated that Sierra Forest was likely to suc-
ceed on the merits of its NEPA claim and specified that the
Forest Service had introduced new management objectives
and modeling techniques in the 2004 SEIS without applying
them to the full range of alternatives. See id. at 1021-22. We
then remanded for application of proper legal standards in the
first instance and expressed “ ‘no opinion as to whether an
injunction should issue.’ ” Id. at 1024 (quoting Arcamuzi v.
Continental Air Lines, Inc., 819 F.2d 935, 939 (9th Cir.
1987)).
After we decided Sierra Forest II but before we granted the
Forest Service’s petition for review and issued Sierra Forest
IV, the district court resolved the parties’ cross-motions for
summary judgment. See Sierra Nevada Forest Protection
Campaign v. Rey, 573 F. Supp. 2d 1316 (E.D. Cal. 2008)
(“Sierra Forest III”); California ex rel. Lockyer v. U.S. Dep’t
of Agric., No. 2:05-cv-0211, 2008 WL 3863479 (E.D. Cal.
Sept. 3, 2008) (“California v. USDA II”). In both cases, the
district court granted summary judgment in favor of defen-
dants, with the exception of the NEPA alternatives claim, on
which it granted summary judgment in favor of the plaintiffs.
See Sierra Forest III, 573 F. Supp. 2d at 1353; California v.
USDA II, 2008 WL 3863479, at *28.
In Sierra Forest III, the district court first found that the
1982 regulations implementing NFMA, rather than the 2005
regulations, applied to the 2004 Framework and that the
NFMA claim was ripe for adjudication “to the extent its pro-
visions are implicated within [Sierra Forest’s] challenge to the
site-specific Basin Project.” 573 F. Supp. 2d at 1327-29.
However, on the merits the court found that the Forest Service
“did not act arbitrarily or capriciously in finding that the
[Basin] Project would maintain species viability concurrently
with meeting other multiple-use objectives.” Id. at 1333. The
SIERRA FOREST LEGACY v. SHERMAN 6921
district court also found no NFMA violation due to the lack
of monitoring, concluding that monitoring requirements under
NFMA regulations did not dictate the particular requirements
contained in the 2004 Framework and that those requirements
had been removed by the 2007 Amendment to the 2004
Framework. See id. at 1333-1337. The district court similarly
denied Sierra Forest’s NEPA claims, finding that “the SEIS
does recognize the importance of addressing short term
impacts,” which were further mitigated by adaptive manage-
ment strategies, id. at 1338-42, and that the SEIS considered
opposing scientific viewpoints and acknowledged scientific
uncertainty, see id. at 1342-45. The court also found that the
Forest Service did not act arbitrarily in violation of NEPA by
concentrating its 2004 Framework cumulative effects analysis
on projected reductions in stand-replacing fires resulting from
intensified management or by relying on the 2004 Framework
cumulative effects analysis in the Basin EA. See id. at 1346-
47, 1352-53. The district court next found that the Forest Ser-
vice permitted adequate public participation, as required by
NEPA, when preparing the Basin EA. See id. at 1348-51.
Finally, the district court found that the Forest Service
did violate NEPA by failing to consider an adequate range of
alternatives, because the Forest Service had not updated alter-
natives set out in the 2001 Framework SEIS to reflect new
modeling techniques used in the 2004 Framework SEIS. See
id. at 1347-48.
In California v. USDA II, the district court first concluded
that the State had standing to challenge the 2004 Framework
based on its “ ‘responsibilities, powers, and assets’ ” concern-
ing “wildlife, water, state-owned land, and public trust lands
in and around the Sierra Nevada.” 2008 WL 3863479, at *5-
*6 (quoting City of Sausalito v. O’Neill, 386 F.3d 1186, 1197
(9th Cir. 2004)). The court then rejected California’s broad
Administrative Procedure Act challenge, finding that the For-
est Service had adequately articulated “ ‘reasoned analysis’ in
adopting the provisions of the 2004 Framework” concerning
fuels management, California spotted owl impacts and graz-
6922 SIERRA FOREST LEGACY v. SHERMAN
ing. Id. at *6-*13 (quoting Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983)). The dis-
trict court next found that the Forest Service had undertaken
the analysis required by NEPA concerning old forest condi-
tions and species including the California spotted owl, willow
flycatcher and Yosemite toad. See id. at *14-*23. The court
also found that the Forest Service had adequately considered
opposing scientific viewpoints and uncertainty and had
explained the concept and utility of adaptive management.
See id. at *23-*27. Again, however, the district court found
that the Forest Service did violate NEPA by failing to con-
sider an adequate range of alternatives that all relied on the
same modeling techniques. See id. at *27-*28.
In a separate opinion addressing both cases, the district
court granted a limited remedy for inadequacies in the NEPA
alternatives analysis. See Sierra Forest Legacy v. Rey, 670 F.
Supp. 2d 1106 (E.D. Cal. 2009) (“Sierra Forest V”). Reject-
ing Sierra Forest’s and California’s requests to enjoin imple-
mentation of the 2004 Framework, the court first found that
it lacked jurisdiction to impose a “substantive” injunction for
a “procedural” NEPA violation. Id. at 1110-11. The district
court also found that traditional injunction standards — spe-
cifically the public interest and the balance of hardships —
did not favor an injunction setting aside the 2004 Framework.
See id. at 1111-13. Rather, the court ordered the Forest Ser-
vice “to prepare another supplemental EIS on the [2004]
Framework, one that meets the range of alternatives and ana-
lytical consistency identified by the Ninth Circuit in its deci-
sion on the preliminary injunction portion of this case” by
May 1, 2010. Id. at 1113.
The district court entered judgment, and Sierra Forest and
California timely appealed. The Forest Service also entered a
notice of appeal in Sierra Forest’s appeal, but we granted the
Forest Service’s subsequent motion for voluntary dismissal.
See Order, Sierra Forest Legacy v. Sherman, No. 10-15376
(9th Cir. May 10, 2010).
SIERRA FOREST LEGACY v. SHERMAN 6923
Sierra Forest moved for an injunction pending appeal,
which the district court denied. See Sierra Forest Legacy v.
Rey, 691 F. Supp. 2d 1204, 1207-14 (E.D. Cal. 2010) (“Sierra
Forest VI”). However, the district court granted Sierra For-
est’s unopposed request to delay completion of a SEIS inte-
grating new alternatives analysis until after resolution of the
merits appeal. See id. at 1214. Sierra Forest then requested
that we enjoin implementation of the 2004 Framework pend-
ing appeal. We denied the motion with leave to refile because
Sierra Forest had presented no evidence that ground would be
broken in projects named in its complaint — Empire, Basin
and Slapjack — during the pendency of its appeal. See Order,
Sierra Forest Legacy v. Sherman, No. 09-17796 (9th Cir. Apr.
29, 2010). After argument Sierra Forest filed another motion
for an injunction pending appeal, presenting evidence that
logging was imminent in Empire, Basin and Slapjack. We
granted the motion in part and enjoined logging in those three
projects “that is inconsistent with the 2001 Framework,
except such logging as may occur within the wildland urban
intermix defense and threat zones, as defined in the” 2004
Framework SEIS. Order, Sierra Forest Legacy v. Sherman,
No. 09-17796 (9th Cir. July 23, 2010). That injunction
remains in place.
II. Jurisdiction
The district court had jurisdiction over Sierra Forest Leg-
acy v. Rey under 28 U.S.C. § 1331 and entered judgment on
December 18, 2009. Sierra Forest filed a notice of appeal two
weeks before judgment, which we “treat[ ] as filed on the date
of and after the entry” of judgment. Fed. R. App. P. 4(a)(2).
The district court had jurisdiction over California v. U.S.
Department of Agriculture under 28 U.S.C. § 1331 and
entered judgment on December 7, 2009. California filed a
timely notice of appeal.
The Forest Service contends that we nevertheless lack juris-
diction because the orders from which Sierra Forest and Cali-
6924 SIERRA FOREST LEGACY v. SHERMAN
fornia appeal are not final. The district court ordered an
agency remand for the Forest Service to prepare another SEIS
to correct defects in the NEPA alternatives analysis, and an
agency remand is ordinarily final only for purposes of a gov-
ernment appeal. See Alsea Valley Alliance v. Dep’t of Com-
merce, 358 F.3d 1181, 1184 (9th Cir. 2004). Sierra Forest
argues that the judgment is final for practical purposes, given
that the draft SEIS already released by the Forest Service
demonstrates that “the remand will not address even the
NEPA violation identified by” Sierra Forest IV, “much less
the additional violations of NEPA and NFMA” that Sierra
Forest alleges on appeal.
28 U.S.C. § 1291 provides us with jurisdiction over “ap-
peals from all final decisions of the district courts of the
United States,” subject to exceptions inapplicable here. “[T]he
requirement of finality is to be given a ‘practical rather than
a technical construction.’ ” Gillespie v. U.S. Steel Corp., 379
U.S. 148, 152 (1964) (quoting Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949)). We have held that
a remand order is final where (1) the district court
conclusively resolves a separable legal issue, (2) the
remand order forces the agency to apply a potentially
erroneous rule which may result in a wasted pro-
ceeding, and (3) review would, as a practical matter,
be foreclosed if an immediate appeal were unavail-
able.
Collord v. U.S. Dep’t of the Interior, 154 F.3d 933, 935 (9th
Cir. 1998). Because we apply a practical construction to the
finality requirement, however, these are considerations, rather
than strict prerequisites. See, e.g., Skagit County Pub. Hosp.
Dist. No. 2 v. Shalala, 80 F.3d 379, 384 (9th 1996) (holding
that an agency remand that would not foreclose a later appeal
was nevertheless “final and appealable”).
In Alsea Valley Alliance, we addressed an appeal from a
district court order invalidating the listing of a particular pop-
SIERRA FOREST LEGACY v. SHERMAN 6925
ulation of salmon as “threatened” under the Endangered Spe-
cies Act (ESA) and ordering the National Marine Fisheries
Service to conduct further analysis consistent with the opin-
ion. 358 F.3d at 1183. We dismissed an appeal by a group of
intervenors for lack of jurisdiction, based on the absence of a
final judgment, and held that “only agencies compelled to
refashion their own rules face the unique prospect of being
deprived of review altogether.” Id. The decision depended on
the possibility “that the action taken by the Service on remand
will provide the [appellant] with all the relief it seeks,” in
which case any decision by the court of appeals “could prove
entirely unnecessary.” Id. at 1185.
On other hand, in Skagit County we held that a remand
order may be final when the broad relief sought could not be
achieved through the action the district court directed the
agency to undertake, in that case a “meaningless remand” for
recalculation of a portion of the claim, in other words “a party
with no cake.” 80 F.3d at 384. We similarly held in Pauly v.
U.S. Department of Agriculture that a narrow partial remand
for a “mechanical recalculation” does not preclude appellate
review of the underlying claims because the district court’s
opinion is “practically final.” 348 F.3d 1143, 1148 (9th Cir.
2003); see also Pit River Tribe v. U.S. Forest Serv., ___ F.3d
___, No. 09-15385, 2010 WL 2991395, at *4 (9th Cir. Aug.
2, 2010) (“Pit River II”) (“Alsea did not announce a hard-and-
fast rule prohibiting a non-agency litigant from appealing a
remand order.”).
It is theoretically possible that on remand the Forest Ser-
vice could reconsider alternatives from the 2001 Framework
in light of modeling and policy changes reflected in the 2004
Framework SEIS and conclude that one of those alternatives
is preferable to the 2004 Framework. However, the final judg-
ment rule deals in practice, not theory. The narrow injunction
both left the 2004 Framework in place and placed a judicial
imprimatur on the vast majority of the challenged SEIS.
Moreover, the Forest Service has already released a draft
6926 SIERRA FOREST LEGACY v. SHERMAN
SEIS that updates the NEPA alternatives analysis, and that
SEIS concludes without detailed analysis that the modified
alternatives would not “fulfill the purpose and need for the
proposed action.” As a practical matter, the work of both the
district court and the agency is complete.
Moreover, the three considerations we articulated in Col-
lord illustrate the practical finality of the district court’s deci-
sion. There is no question that the district court decided
numerous legal issues distinct from those to be addressed in
the agency remand. Although the district court’s order would
not “force[ ] the agency to apply a potentially erroneous rule,”
it permits adherence to rules that plaintiffs continue to chal-
lenge and the Forest Service continues to defend on appeal,
“which may result in a wasted proceeding.” Collord, 154 F.3d
at 935. The Forest Service recognized the inefficiency of such
procedures by acquiescing to Sierra Forest’s request to stay
the remedy pending appeal. Finally, although review would
not be foreclosed after further administrative proceedings, we
have ignored this requirement in the face of a “cakeless”
remand. See Skagit County, 80 F.3d at 384.
Our recent decision in Pit River II provides a useful coun-
terpoint. There we held that an agency remand for an entirely
new EIS, along with mandatory consultation with the plaintiff
Indian tribe, did not constitute a final judgment subject to
review. See 2010 WL 2991395, at *2-*6. Unlike the partially
erroneous NEPA analysis found by the district court in this
case, the agencies in Pit River II had failed entirely to engage
in the required NEPA analysis prior to a disputed lease exten-
sion. See id. at *1. We also noted that the Pit River Tribe
would “have an opportunity to participate in the agencies’
processes on remand” and that it was “possible that the agen-
cies may decide that no geothermal power production should
occur on the land,” obviating the need for appellate review.
Id. at *5. This broad remand stands in stark contrast to the
correction ordered in this case.
SIERRA FOREST LEGACY v. SHERMAN 6927
For the foregoing reasons, the district court’s judgments are
final and therefore subject to review under 28 U.S.C. § 1291.
We therefore have jurisdiction over Sierra Forest’s and Cali-
fornia’s appeals.
III. Standard of Review
Standing, ripeness and mootness are questions of law that
we review de novo. See Mayfield v. United States, 599 F.3d
964, 970 (9th Cir. 2010) (standing); California ex rel. Lockyer
v. U.S. Dep’t of Agric., 575 F.3d 999, 1010 (9th Cir. 2009)
(ripeness); Siskiyou Regional Educ. Project v. U.S. Forest
Serv., 565 F.3d 545, 559 (9th Cir. 2009) (mootness). We also
“review the district court’s grant of summary judgment de
novo.” California ex rel. Lockyer, 575 F.3d at 1011. “Agency
decisions that allegedly violate . . . NEPA and [the] NFMA
are reviewed under the Administrative Procedure Act
(‘APA’), and may be set aside only if they are ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law.’ ” Or. Natural Res. Council Fund v. Good-
man, 505 F.3d 884, 889 (9th Cir. 2007) (quoting 5 U.S.C.
§ 706(2)(A)).
Review under the arbitrary and capricious standard
is narrow, and [federal courts do] not substitute
[their] judgment for that of the agency. Rather,
[courts] will reverse a decision as arbitrary and
capricious only if the agency relied on factors Con-
gress did not intend it to consider, entirely failed to
consider an important aspect of the problem, or
offered an explanation that runs counter to the evi-
dence before the agency or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise.
Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)
(en banc) (internal quotation marks and citations omitted),
abrogated on other grounds by Winter, 129 S. Ct. at 375.
6928 SIERRA FOREST LEGACY v. SHERMAN
“Although we review the district court’s decision to grant
a permanent injunction for an abuse of discretion, we review
the rulings of law relied upon by the district court in awarding
injunctive relief de novo.” Biodiversity Legal Found. v. Badg-
ley, 309 F.3d 1166, 1176 (9th Cir. 2002) (internal citations
omitted).
IV. National Environmental Policy Act
The National Environmental Policy Act is “our basic
national charter for protection of the environment.” 40 C.F.R.
§ 1500.1(a). NEPA requires that
all agencies of the Federal Government shall include
in every recommendation or report on proposals for
legislation and other major Federal actions signifi-
cantly affecting the quality of the human environ-
ment, a detailed statement by the responsible official
on (i) the environmental impact of the proposed
action, (ii) any adverse environmental effects which
cannot be avoided should the proposal be imple-
mented, (iii) alternatives to the proposed action, (iv)
the relationship between local short-term uses of
man’s environment and the maintenance and
enhancement of long-term productivity, and (v) any
irreversible and irretrievable commitments of
resources which would be involved in the proposed
action should it be implemented.
42 U.S.C. § 4332(2)(C). Agencies must also “study, develop,
and describe appropriate alternatives to recommended courses
of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources.” Id.
§ 4332(2)(E). When an agency produces an environmental
impact statement (EIS), it must “provide full and fair discus-
sion of significant environmental impacts and shall inform
decisionmakers and the public of the reasonable alternatives
SIERRA FOREST LEGACY v. SHERMAN 6929
which would avoid or minimize adverse impacts or enhance
the quality of the human environment.” 40 C.F.R. § 1502.1.
“NEPA . . . does not impose any substantive requirements
on federal agencies — it ‘exists to ensure a process.’ ” Lands
Council, 537 F.3d at 1000 (quoting Inland Empire Pub. Lands
Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir.
1996)). So long as “the adverse environmental effects of the
proposed action are adequately identified and evaluated, the
agency is not constrained by NEPA from deciding that other
values outweigh the environmental costs.” Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).
A. Standing
[1] As a preliminary matter, the Forest Service contends
that the State of California lacks standing to challenge the
2004 Framework under NEPA. Several intervenors also argue
that Sierra Forest lacks standing to challenge the 2004 Frame-
work under NEPA, asserting that no person or entity may ever
have standing for “a facial challenge to a first-level NEPA
document.”
Constitutional standing requires a plaintiff to demonstrate:
(1) it has suffered an “injury in fact” that is (a) con-
crete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defen-
dant; and 3) it is likely, as opposed to merely specu-
lative, that the injury will be redressed by a favorable
decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S.
167, 180-81 (2000).
[D]eprivation of a procedural right without some
concrete interest that is affected by the deprivation
6930 SIERRA FOREST LEGACY v. SHERMAN
— a procedural right in vacuo — is insufficient to
create Article III standing. Only “a person who has
been accorded a procedural right to protect his con-
crete interests can assert that right without meeting
all the normal standards for redressability and imme-
diacy.”
Summers v. Earth Island Inst., 129 S. Ct. 1142, 1151 (2009)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7
(1992)) (emphasis in original).
1. California
[2] California, like all states, “does not have standing as
parens patriae to bring an action against the Federal Govern-
ment.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.
592, 610 n.16 (1982). States are also not “normal litigants for
the purposes of invoking federal jurisdiction.” Massachusetts
v. EPA, 549 U.S. 497, 518 (2007). On the other hand, “well-
founded desire to preserve [a state’s] sovereign territory”
“support[s] federal jurisdiction,” which may be further rein-
forced by ownership of “a great deal of the ‘territory alleged
to be affected’ ” by a challenged federal action. Id. at 519
(quoting Georgia v. Tenn. Copper Co., 206 U.S. 230, 237
(1907)). A political body may also uniquely “sue to protect its
own ‘proprietary interests’ that might be ‘congruent’ with
those of its citizens,” including “responsibilities, powers, and
assets.” City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th
Cir. 2004) (quoting Colorado River Indian Trives v. Town of
Parker, 776 F.2d 846, 848 (9th Cir. 1985)); see also id. at
1198 (including among such interests the “ability to enforce
land-use and health regulations” and “protecting its natural
resources from harm”). California has unquestionably
asserted a well-founded desire to protect both its territory and
its proprietary interests both from direct harm and from spill-
over effects resulting from action on federal land, including
ownership and trusteeship over “wildlife, water, State-owned
land, and public trust lands in and around the Sierra Nevada.”
SIERRA FOREST LEGACY v. SHERMAN 6931
Therefore, the State of California has concrete and particular-
ized interests protected by the application of NEPA to the
2004 Framework.
Because of California’s protected interests, this case is dis-
tinguishable from Summers v. Earth Island Institute. In Sum-
mers, the plaintiff environmental organizations had
challenged a failure to apply particular regulations to a log-
ging project, the Burnt Ridge Project, but they settled the site-
specific dispute during litigation. See 129 S. Ct. at 1148. The
environmental organizations had submitted only two affida-
vits to establish standing: one addressing the Burnt Ridge
Project and one, the Bensman affidavit, that did not address
the challenged regulation, a particular site or a future injury.
See id. at 1150. The Court held that a “vague desire” to visit
locations that might be harmed by the challenged regulations
was insufficient to establish a particularized interest. Id. at
1150-51. The difference here is that California maintains con-
crete interests spanning its entire territory. Unlike the Bens-
man affidavit, California’s affidavit addresses the challenged
regulation, the entirety of the Sierra Nevada and future injury
that the State claims will result from any logging under the
2004 Framework. Thus, California’s unique proprietary inter-
ests will invariably be affected by the 2004 Framework
because logging will occur soon somewhere in the State. The
potential injury is neither vague nor speculative.
California has also asserted actual harm to its procedural
interest in federal management decisions made under the
deliberation-forcing requirements of NEPA. The State’s
standing is not defeated by its not having submitted affidavits
establishing approval of specific logging projects under the
2004 Framework. A land resource and management plan
(LRMP), such as the 2004 Framework, “sets logging goals,
selects the areas of the forest that are suited to timber produc-
tion, and determines which probable methods of timber har-
vest are appropriate [but] does not itself authorize the cutting
of any trees.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S.
6932 SIERRA FOREST LEGACY v. SHERMAN
726, 729 (1998) (internal quotation marks and citations omit-
ted). Upon approval of a particular logging project, environ-
mental “harm is more imminent and more certain.” Id. at 734.
However a procedural injury is complete after an LMRP has
been adopted, so long as is it is fairly traceable to some action
that will affect the plaintiff’s interests. See id. at 737
(acknowledging the possibility of “a person with standing” “at
the time the [NEPA violation] takes place” in an LRMP and
before anticipated implementation decisions in a site-specific
project); see also Pit River Tribe v. U.S. Forest Serv., 469
F.3d 768, 785 (9th Cir. 2006) (“Pit River I”) (“The purpose
of an EIS is to apprise decisionmakers of the disruptive envi-
ronmental effects that may flow from their decisions at a time
when they retain a maximum range of options.” (emphasis
added and internal quotation marks and citation omitted)).
The 2004 Framework permits the Forest Service to implement
forest management projects in California, and there is no real
possibility that the Forest Service will then decline to adopt
any management projects under the framework governing
over 10 million acres of federal land. Cf. Rapid Transit Advo-
cates, Inc. v. Southern California Rapid Transit District, 752
F.2d 373, 378 (9th Cir. 1985) (per curiam) (holding, after an
agency decision to fund design and engineering work, that
harm was not imminent and that plaintiffs therefore lacked
standing). Even if a specific application were required for
standing, we would take judicial notice of the Basin EA, con-
tained within Sierra Forest’s record on appeal, which
approves intensive management within California. Therefore,
we hold that California has standing to assert a facial NEPA
claim against the 2004 Framework.2
2
The Forest Service also asserts in a footnote that “failure to identify
and challenge projects that will injure it highlights that the State has not
challenged a proper agency action under the APA.” This argument attacks
the ripeness of California’s claim, rather than the imminence of the
asserted injury. However, the Forest Service relies on cases denying sub-
stantive review of an LRMP prior to application in a logging project,
rather than a procedural NEPA challenge. See, e.g., Ecology Ctr. v. Cas-
SIERRA FOREST LEGACY v. SHERMAN 6933
2. Sierra Forest
[3] Sierra Forest similarly has standing to bring a facial
NEPA challenge to the 2004 Framework, independent from
specific implementing projects. Sierra Forest has challenged
the 2004 Framework as an imminent source of harm to its
members’ interests in the area encompassed by the Basin,
Slapjack and Empire projects within the Plumas National For-
est, and there is no question that affidavits establish members’
interests in those areas. For the reasons discussed above, a
procedural NEPA violation is complete even before an imple-
menting project is approved. Nor could the Forest Service
cure flaws in an LRMP in the EIS for a site-specific project.
See Pit River I, 469 F.3d at 785 (“[D]ilatory or ex post facto
environmental review cannot cure an initial failure to under-
take environmental review.”). We have never held that an
LRMP is not subject to facial attack based on an alleged
NEPA violation.
B. 2004 Framework: Short-Term Harm
[4] Sierra Forest and California first argue that the Forest
Service violated NEPA by focusing on uncertain long-term
impacts in the 2004 Framework SEIS, at the expense of
known near-term harm. “The sweeping policy goals
announced in § 101 of NEPA are . . . realized through a set
of ‘action-forcing’ procedures that require that agencies take
a ‘hard look’ at environmental consequences.” Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)
(internal quotation marks and citations omitted). “A ‘hard
taneda, 574 F.3d 652, 658 (9th Cir. 2009). The Supreme Court has specifi-
cally excepted NEPA claims from an application requirement because
“NEPA, unlike the NFMA, simply guarantees a particular procedure, not
a particular result.” Ohio Forestry Ass’n, 523 U.S. at 737; see also id.
(noting that “the claim can never get riper” than when “a failure to comply
with the NEPA procedure” has taken place). Therefore California’s facial
NEPA challenge to the 2004 Framework is ripe.
6934 SIERRA FOREST LEGACY v. SHERMAN
look’ includes considering all foreseeable direct and indirect
impacts. Furthermore, a ‘hard look’ should involve a discus-
sion of adverse impacts that does not improperly minimize
negative side effects.” N. Alaska Envtl. Ctr. v. Kempthorne,
457 F.3d 969, 975 (9th Cir. 2006) (internal quotation marks
and citations omitted); see also 42 U.S.C. § 4332(2)(C)(iv)
(requiring analysis of “the relationship between local short-
term uses of man’s environment and the maintenance and
enhancement of long-term productivity”); Or. Natural Res.
Council Fund v. Brong, 492 F.3d 1120, 1133 (9th Cir. 2007)
(“[G]eneral statements about possible effects and some risk
do not constitute a hard look absent a justification regarding
why more definitive information could not be provided.”
(internal quotation marks and citations omitted)). Neverthe-
less, where agency experts have analyzed the immediate harm
of a proposed action, the Forest Service may conclude that
long-term benefits outweigh short-term costs. See Native Eco-
systems Council v. U.S. Forest Serv., 428 F.3d 1233, 1251
(9th Cir. 2005). Proper analysis may also rely on long-term
modeling, despite the inherent uncertainty of projections. See
Nev. Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 718
(9th Cir. 1993).
[5] The 2004 Framework final SEIS addresses short-term
effects concerning the California spotted owl, fisher and mar-
ten — old forest species at the core of Sierra Forest’s NEPA
claim. Concerning the California spotted owl, the SEIS
acknowledges that implementing the HFQLG Act is likely to
reduce owl habitat, widen gaps between habitat patches and
create stand openings. Similarly, the SEIS indicates that
implementation of the 2004 Framework will eliminate some
canopy cover, which affects both California spotted owl habi-
tat and habitat for owl prey. In sum, the SEIS states, “there
is some risk of negatively affecting California spotted owls in
the short term because of the uncertainty associated with the
effects of using mechanical treatment,” potentially affecting
five percent of protected activity centers. In order to mitigate
potential harm and enhance understanding of the effects of
SIERRA FOREST LEGACY v. SHERMAN 6935
forest management on the California spotted owl, the 2004
Framework adopts specific owl monitoring programs.
The SEIS provides similar details with regard to the fisher
and marten. It acknowledges that treatments “may increase
fragmentation and create barriers to fisher movement” and
yield “short-term trade offs in current habitat quality” through
reductions in canopy closure and logging of large trees. The
SEIS also notes that implementation of the 2004 Framework
will harm marten habitat as compared to the 2001 Framework
in the short term by eliminating one percent of canopy closure
and five percent of old growth forests. Group selection log-
ging in the HFQLG pilot project area will affect 0.57 percent
of the project area per year for the first five years, reducing
marten habitat, but would not render large areas “unsuitable
for foraging or dispersal.”
California also raises concerns about short-term effects on
the willow flycatcher and the Yosemite toad. The SEIS
explains that the 2004 Framework creates some short-term
risk to the willow flycatcher by permitting grazing in nine
sites where flycatchers have not been observed since 1982 or
have been observed only after breeding season. Similarly, the
SEIS explains that during the development of site-specific
management plans, permitting cattle to graze increases the
risk that Yosemite toads will be trampled. California does not
specify what other types of short-term impacts it anticipates.
California also points out that a particular chart found in the
2001 Framework SEIS was omitted from the 2004 Frame-
work SEIS. This chart attached a degree of certainty to
whether old forest habitats would be preserved by each alter-
native. Although NEPA requires us to determine “whether the
EIS’s ‘form, content and preparation foster both informed
decisionmaking and informal public participation,’ ” City of
Sausalito, 386 F.3d at 1207 (quoting Idaho Conservation
League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992)), we
may apply only “pragmatic judgment,” Churchill County v.
6936 SIERRA FOREST LEGACY v. SHERMAN
Norton, 276 F.3d 1060, 1071 (9th Cir. 2001) (internal quota-
tion marks and citations omitted), and may not impose “upon
the agency [our] own notion of which procedures are ‘best’ or
most likely to further some vague, undefined public good,”
Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Coun-
cil, Inc., 435 U.S. 519, 549 (1978). We cannot mandate that
a SEIS include a particular graph, no matter how helpful.
Moreover, the SEIS states in text that the 2001 and 2004
Frameworks “are indistinguishable in their short-run out-
comes” and presents in graphical form short-term acreage of
old growth forest projected to exist during implementation of
the alternatives under serious consideration. Collectively, the
substantial discussion of potential harm to old forest species
and projections of the size of old growth forests adequately
addresses the relative short-term effects of these two alterna-
tives.
[6] There is no question that implementation of the 2004
Framework will destroy some owl habitat, a consequence the
SEIS plainly acknowledges. Annualizing anticipated effects
would not have furthered the deliberation-forcing goals of
NEPA. Moreover, the projected loss of habitat is small com-
pared to both the scale of the Sierra Nevada and earlier man-
agement practices insensitive to the needs of old forest
species. For example, the 2004 Framework SEIS states,
“Within the HFQLG project area . . . [the 2004 Framework]
is projected to result in roughly 65,000 fewer acres of suitable
owl habitat in year 20 than [the 2001 Framework].” Less than
20 years ago, the federal courts reviewed practices that raised
the question “whether the owl can survive the near-term loss
of another half-million acres of its habitat.” Seattle Audubon
Soc’y v. Moseley, 798 F. Supp. 1473, 1478 (W.D. Wash.
1992). It is the prerogative of the Forest Service to determine
that long-term effects — even long-term effects subject to
uncertainty — remain desirable despite short-term harm. The
Forest Service, when promulgating the 2004 Framework, dis-
closed and focused adequately on short-term effects of inten-
sified management and therefore complied with NEPA.
SIERRA FOREST LEGACY v. SHERMAN 6937
C. 2004 Framework: Dissenting Views
[7] Sierra Forest and California also both argue that the
Forest Service violated NEPA when approving the 2004
Framework by failing to disclose and to respond to the views
of experts opposed to intensified management. “In preparing
the final EIS, the agency must ‘discuss at appropriate points
. . . any responsible opposing view which was not adequately
discussed in the draft statement and [must] indicate the agen-
cy’s response to the issue raised.’ ” Robertson, 490 U.S. at
350 n.13 (quoting 40 C.F.R. § 1502.9(b)) (alterations in origi-
nal); see also Lands Council, 537 F.3d at 1001 (“[T]he Forest
Service must acknowledge and respond to comments by out-
side parties that raise significant scientific uncertainties and
reasonably support that such uncertainties exist.”); 40 C.F.R.
§ 1503.4(a) (“An agency preparing a final environmental
impact statement shall assess and consider comments both
individually and collectively, and shall respond . . . in the
final statement.”). The mere presence of expert disagreement
does not violate NEPA because “experts in every scientific
field routinely disagree.” Lands Council, 537 F.3d at 1001.
NEPA also does not require an agency to publish “every com-
ment . . . in the final EIS. Nor must an agency set forth at full
length the views with which it disagrees.” California v. Block,
690 F.2d 753, 773 (9th Cir. 1982) (internal citations omitted).
Sierra Forest and California present an array of experts who
submitted comments to the 2004 Framework draft SEIS. As
a general matter, the final SEIS incorporates a science consis-
tency review that raises conflicting perspectives. It also
acknowledges and responds to general critiques concerning
the use of science. Plaintiffs’ experts’ more specific criticisms
can be broken down into five categories.
Most critiques concerned the California spotted owl. The
final SEIS, however, expressed uncertainty concerning Cali-
fornia spotted owl analysis, noted submission of concerns
“about the reliability of habitat projections” for the California
6938 SIERRA FOREST LEGACY v. SHERMAN
spotted owl and disclosed “conflicting science about the
effects of canopy cover reductions from fuel treatments.”
Most importantly, the SEIS dedicates nearly 12 pages to air-
ing concerns about California spotted owl management and
providing agency responses.
Second, the experts expressed concerns regarding the
uncertainty inherent in long-term modeling. The final SEIS
acknowledges that “[c]oncerns have been expressed about the
reliability of habitat projections used in this analysis and the
deterministic nature of the models underlying those projec-
tions,” but explains the importance and inherent flaws of
modeling. The SEIS also includes modeling appendices,
which describe modeling assumptions and “sensitivity analy-
sis to address questions about uncertainty in modeling out-
comes.” Moreover, the Regional Forester acknowledged the
validity of some critiques and chose not to rely on 120-year
projections when deciding to adopt the 2004 Framework.
Third, the experts argued that the 2004 Framework will
lead to further decline of fisher and marten populations. The
final SEIS acknowledges uncertainty concerning marten and
fisher habitat use and the effect of management on persistence
in the Sierra Nevada. It also recognizes that concerns have
been expressed “that treatments . . . may increase fragmenta-
tion and create barriers to fisher movement,” that reductions
to canopy that will harm fisher habitat and about “effects of
the [HFQLG] pilot project, particularly on marten in eastside
pine habitats.” The SEIS also airs and responds to three pages
of additional concerns regarding fisher and marten manage-
ment.
Fourth, the experts raised concerns regarding meadow spe-
cies, such as the willow flycatcher and Yosemite toad. The
final SEIS acknowledges uncertainty concerning the effects of
grazing on these species and accepts one of the willow fly-
catcher working group’s suggestions concerning development
of a conservation strategy. More importantly, the SEIS raises
SIERRA FOREST LEGACY v. SHERMAN 6939
and addresses a host of public concerns regarding both
meadow species in the volume dedicated to responding to
public comments.
Fifth, the experts critique the fire ecology underpinning the
core management analysis. The final SEIS notes uncertainty
“whether unaltered wildfires would have a greater or lesser
impact . . . on ecosystem integrity and habitat” compared to
fires in treated areas. Again, the SEIS acknowledges and
responds to a substantial number of critics addressing fire and
fuels management, including critiques of the scope and meth-
ods of treatment.
[8] California specifically argues that “the agency did not
bring attention to . . . critical expert comments but rather
mixed them into the stack of all public comments . . . .” Simi-
larly, Sierra Forest contends that the “SEIS does not disclose
that these ‘other’ viewpoints were expressed by the country’s
leading spotted owl experts, including the retired Forest Ser-
vice owl expert . . . and the agency’s own wildlife office.”
However, NEPA does not require that a final SEIS prioritize
the concern of scientific experts or disclose their identities
amongst public critiques. The practical concerns of individual
landholders or hikers may be just as important — and just as
trenchant — as the formal submissions of academic experts.
So long as an EIS addresses the substance of public com-
ments, it need not single out the authors.
[9] In sum, the SEIS dedicates over 120 pages to raising
and meaningfully responding to public critiques. That is all
NEPA requires. Sierra Forest and California do not argue that
the Forest Service’s decision not to adopt critiques was arbi-
trary, capricious or contrary to law. Therefore, the Forest Ser-
vice did not violate NEPA by failing to disclose conflicting
scientific opinion.
D. Basin Project: Cumulative Impacts
Sierra Forest separately challenges approval of the Basin
Project under NEPA, arguing that the Basin EA failed to
6940 SIERRA FOREST LEGACY v. SHERMAN
assess the cumulative impact of the Project. To comply with
a NEPA alternatives analysis,
the Forest Service must consider, among other
things, the “cumulative impacts” of the proposed
action, which NEPA’s implementing regulations
define as the “impact on the environment which
results from the incremental impact of the action
when added to other past, present, and reasonably
foreseeable future actions . . . .”
League of Wilderness Defenders v. U.S. Forest Serv., 549
F.3d 1211, 1216 (9th Cir. 2008) (quoting 40 C.F.R. § 1508.7).
A cumulative impact analysis must describe related projects,
“enumerate the environmental effects of those projects” and
“consider the interaction of multiple activities.” Or. Natural
Res. Council, 492 F.3d at 1133.
[10] The Basin EA provides detailed cumulative analysis
of soil and watershed effects and incorporates a substantial
cumulative analysis concerning fish and wildlife in the area.
A section of the EA is titled “Potential Cumulative Impacts”
and summarizes cumulative effects of the Basin Project
alongside both prior management and other planned projects
in the vicinity. Sierra Forest’s argument that the EA fails “to
disclose the cumulative impact that these projects have had
and will have on old forest wildlife” or to provide “any expla-
nation” of cumulative effects” is largely conclusory and is
belied by the record. The EA cumulative impact analysis cov-
ers a variety of factors that could contribute to an overall
decline in old forest wildlife, including group logging,
HFQLG pilot projects and barred owl range expansion.
[11] The EA is supplemented by the extensive discussions
of cumulative impact in the 2004 Framework SEIS, which is
the cumulative assessment of planned management through-
out the Sierra Nevada. Sierra Forest argues that it would be
improper for the Basin Project to rely on the 2004 Framework
SIERRA FOREST LEGACY v. SHERMAN 6941
SEIS. Although the 2004 Framework commits to “[d]etailed
cumulative effects analysis at the . . . project level” concern-
ing soil and watershed effects, this does not preclude reliance
on “cumulative effects . . . addressed programmatically in the
[2004 Framework] SEIS.” Between the EA and SEIS analy-
sis, the Forest Service has conducted and disclosed a substan-
tial assessment of cumulative impacts. Therefore, the Forest
Service did not violate NEPA when approving the Basin Proj-
ect.
V. Injunctive Relief on the NEPA Claim
Although we agree with the district court’s conclusions
concerning the substantive application of NEPA to the 2004
Framework and the Basin Project, we part ways concerning
the appropriate remedy for the NEPA violation that occurred
when the Forest Service established the 2004 Framework.
Before an award of permanent injunctive relief, a plaintiff
must meet four well-established requirements:
(1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary dam-
ages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships
between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest
would not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
Even in NEPA cases, “[a]n injunction should issue only if the
traditional four-factor test is satisfied”; no “thumb on the
scales is warranted.” Monsanto Co. v. Geertson Seed Farms,
130 S. Ct. 2743, 2757 (2010).
A. Jurisdiction
[12] The first issue we face is the district court’s conclu-
sion that it lacked “jurisdiction over Plaintiffs’ substantive
6942 SIERRA FOREST LEGACY v. SHERMAN
claims against the programmatic 2004 Framework,” based on
the legal premise that “[o]n a programmatic Framework basis
. . . [courts] are limited to providing procedural relief.” Sierra
Forest V, 670 F. Supp. 2d at 1110. This is plainly erroneous.
As noted above, Sierra Forest and California have standing to
assert a facial NEPA challenge to the 2004 Framework, and
their claim is ripe. The APA requires that a reviewing court
shall “hold unlawful and set aside agency action, findings,
and conclusions found to be . . . without observance of proce-
dure required by law.” 5 U.S.C. § 706(2)(D) (emphasis
added). We have directed or upheld setting aside agency
action pending NEPA compliance on numerous occasions.
See, e.g., Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d
549, 562 (9th Cir. 2006) (enjoining timber sales premised on
a policy change that violated NEPA). If courts could not stop
the federal government from applying a substantive rule pro-
mulgated without adherence to required procedures, regard-
less of the equities, both NEPA and the APA would be toothless.3
Therefore, the district court abused its discretion by finding
that it lacked jurisdiction to bar implementation of the 2004
Framework during a remand for analysis required by NEPA.
B. Equitable Analysis: Reliance on Government Experts
As an alternative ground for its limited remedial order, the
district court engaged in a traditional equitable analysis and
concluded that the appropriate remedy was to leave the 2004
Framework in place and to order the Forest Service “to pre-
3
None of the cases cited by the district court or the intervenors supports
a contrary rule. See Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152,
1157-58 (9th Cir. 1988) (merely holding that a court is not “compelled to
issue an injunction without a balancing of the equities”); see also Lujan
v. Nat’l Wildlife Fed’n, 497 U.S. at 890 (holding that plaintiffs challenged
an evolving series of agency operations rather than a final agency action);
Ohio Forestry Ass’n, 523 U.S. at 737 (holding that although a facial chal-
lenge under NFMA is not ripe, a challenge under NEPA may be); Sierra
Club v. Peterson, 228 F.3d at 561 (addressing a substantive NFMA chal-
lenge rather than a procedural NEPA challenge).
SIERRA FOREST LEGACY v. SHERMAN 6943
pare another supplemental EIS on the Framework, one that
meets the range of alternatives and analytical consistency
identified by the Ninth Circuit in its decision on the prelimi-
nary injunction portion of this case.” Sierra Forest V, 670 F.
Supp. 2d at 1113. Sierra Forest challenges this decision on
numerous grounds.
[13] When assessing the four prerequisites for a permanent
injunction, the district court correctly noted that “the Forest
Service is entitled to rely on the reasoned opinions of its
experts.” Sierra Forest V, 670 F. Supp. 2d at 1111. However,
the court then deferred to those experts in its own equitable
analysis. In so doing, the district court improperly conflated
deference in the context of judicial review of an agency deci-
sion, see Lands Council, 537 F.3d at 993, with deference in
consideration of the equities after a violation of law has been
found. Although the federal government is undoubtedly per-
mitted to follow its own experts when making a decision, see
Marsh v. Or. Natural Res. Council, 490 U.S. 360, 385 (1989),
federal experts are not always entitled to deference outside of
administrative action. See Seattle Audubon Soc’y v. Evans,
771 F. Supp. 1081, 1096 (W.D. Wash.), aff’d 952 F.2d 297
(9th Cir. 1991) (“This is not the usual situation in which the
court reviews an administrative decision and, in doing so,
gives deference to agency expertise.”); see also Seattle Audu-
bon Soc’y v. Evans, 952 F.2d 297, 302 (9th Cir. 1991) (hold-
ing that district court’s remedy order was not an abuse of
discretion).
Winter v. Natural Resources Defense Council is illustrative
of the circumstances in which deference is appropriate when
considering a broad equitable question. In Winter, the
Supreme Court held that “lower courts failed properly to defer
to senior Navy officers’ specific, predictive judgments about
how the preliminary injunction would reduce the effective-
ness of the Navy’s . . . training exercises.” 129 S. Ct. at 379.
It is reasonable that courts would defer to particular experts
when the government has unique expertise, in fields such as
6944 SIERRA FOREST LEGACY v. SHERMAN
national security or the internal functioning of the military.
However, Winter applied no such deference concerning the
possibility that sonar testing would irreparably harm whales.
See id. at 383-84. Ecology is not a field within the unique
expertise of the federal government. See Lands Council, 537
F.3d at 1004-05 (applying balance of harms analysis without
deference to agency views); see also Massachusetts v. EPA,
549 U.S. at 519-20 (noting “special solicitude” given to states
concerning interests in health and welfare). Deference to
agency experts is particularly inappropriate when their con-
clusions rest on a foundation tainted by procedural error.
[14] If the federal government’s experts were always enti-
tled to deference concerning the equities of an injunction, sub-
stantive relief against federal government policies would be
nearly unattainable, as government experts will likely attest
that the public interest favors the federal government’s pre-
ferred policy, regardless of procedural failures. We hold that
the district court abused its discretion by deferring to agency
views concerning the equitable prerequisites for an injunction.
We therefore vacate the district court’s narrow permanent
injunction and remand for analysis of the requirements of a
permanent injunction without deference to the Forest Ser-
vice’s experts simply because of their relationship with the
agency. Our interim injunction will remain in place until the
district court has addressed these cases on remand and crafted
its own injunctive order.
VI. NEPA Conclusion
We hold that the district court properly granted the Forest
Service summary judgment on Sierra Forest’s and Califor-
nia’s NEPA claims. The Forest Service did not violate NEPA
when promulgating the 2004 Framework or approving the
Basin Project. We vacate, however, the district court’s perma-
nent injunction and remand for analysis without unwarranted
deference to Forest Service experts.
SIERRA FOREST LEGACY v. SHERMAN 6945
REINHARDT, Circuit Judge:
VII. National Forest Management Act
A.
Sierra Forest challenges the United States Forest Service’s
forest management plan for the Sierra Nevada (“the 2004
Framework” or “the Framework”) and the Forest Service’s
decision to approve the Basin Group Selection Project (“the
Project”), a timber harvesting project designed to implement
the 2004 Framework. Sierra Forest contends that the Forest
Service violated the National Forest Management Act (the
NFMA) by approving the Project without complying with the
population monitoring requirements for management indica-
tor species that were set forth in the 2004 Framework. Sierra
Forest also contends that the 2004 Framework itself violates
the NFMA because it will not sufficiently maintain species
viability.
First, the district court granted summary judgment for the
Forest Service on the claim that the Project had been
approved without required population trend data. It did so
because it concluded that the 2007 Amendment to the forest
plan removed the monitoring requirements contained in the
2004 Framework, and that the 2007 Amendment applied
retroactively to the Basin Project. Sierra Nevada Forest Pro-
tection Campaign v. Rey, 573 F. Supp. 2d 1316, 1335 (E.D.
Cal. 2008). I disagree. The 2007 Amendment cannot retroac-
tively eliminate the 2004 Framework’s population monitoring
requirement. A remand is therefore required for the district
court to determine in the first instance whether, when it
approved the Project, the Forest Service complied with the
2004 Framework’s population monitoring requirements. In
making that determination, the district court must consider the
2004 Framework’s requirements as they were at the time the
Project was approved, and not as the Forest Service repre-
sented them to be following the 2007 Amendment.
6946 SIERRA FOREST LEGACY v. SHERMAN
Second, the district court granted summary judgment for
the Forest Service on Sierra Forest’s claim that the 2004
Framework violates the NFMA because it will not maintain
species viability. However, as discussed above, the district
court did not determine whether the Project complied with the
2004 Framework as it existed at the time of the Project’s
approval. Because on remand the district court must answer
that question, Sierra Forest’s challenge to the 2004 Frame-
work is not presently ripe for judicial consideration. Until the
district court decides whether the Project complies with the
2004 Framework without the 2007 Amendment, it should not
consider Sierra Forest’s facial challenge to that Framework.
B.
The Sierra Nevada is an 11.5 million acre area in the west-
ern United States that contains eleven national forests. It is
managed by the United States Forest Service pursuant to the
National Forest Management Act, which “specifies the proce-
dural and substantive requirements under which the Forest
Service is to manage National Forest System lands.” Lands
Council v. McNair, 537 F.3d 981, 988 (9th Cir. 2008) (en
banc).
The NFMA directs the Forest Service to create a “forest
management plan” to govern its activities in each national for-
est “unit,” including the Sierra Nevada. 16 U.S.C. § 1604(a).
The current forest management plan for the Sierra Nevada is
referred to by the parties as the 2004 Framework. The content
and history of the 2004 Framework are discussed in detail in
Judge Fisher’s opinion, including the Amendment in 2007,
which the Forest Service purported to make retroactive.
After adopting a forest management plan such as the 2004
Framework, the Forest Service implements the plan through
discrete projects. See Citizens for Better Forestry v. U.S.
Dept. of Agriculture, 341 F.3d 961, 966 (9th Cir. 2003). The
Project here is a timber harvesting project located on a 38,893
SIERRA FOREST LEGACY v. SHERMAN 6947
acre area in the Plumas National Forest, which is one of the
11 forests within the Sierra Nevada. The Project will allow for
the logging of about 800 “groups” of trees, each group about
1½ acres in size, as well as the logging of a number of indi-
vidually selected trees with diameters of up to 30 inches.
It is an aim of the Project to “contribut[e] to the economic
stability of rural communities” by creating jobs in the saw
timber industry. The Project also raises money for the federal
government; the expected net income from the Project is
$700,000. In addition, the Project is part of a long-term strat-
egy to “eventually achiev[e] desired future conditions of an
all-aged, multistory, fire resilient forest.” The Project will
contribute to this strategy by reducing fuel loads in some
areas. But the Project is “not . . . designed to meet a purpose
and need for hazardous fuel reduction per se” and “[t]he
group selection units are too small and widely scattered to
provide much strategic benefit to wildland fire suppression.”4
The Forest Service approved the Project in 2004 after con-
cluding that it would have “[n]o significant adverse direct or
indirect effects on the environment.”
C.
Sierra Forest’s first contention under the NFMA is that the
Project does not comply with the NFMA because it was
approved in violation of the population monitoring require-
ments set forth in Appendix E of the 2004 Framework. Under
the NFMA, “after a forest plan is developed, all subsequent
agency action, including site-specific plans such as the [Proj-
ect], must . . . be consistent with the governing [forest man-
agement] plan.” Lands Council, 537 F.3d. at 989; see also 16
U.S.C. § 1604(i). The Project was approved in 2004. At that
4
That distinguishes this case from our recent opinion in League of Wil-
derness v. Allen, 615 F.3d 1122 (9th Cir. 2010). In Allen, we noted that
the commercial benefit of the project was “merely attendant to the primary
goal of lessening” the risk from large scale fires. Id. at 1126 n.1.
6948 SIERRA FOREST LEGACY v. SHERMAN
time, the governing forest management plan was the 2004
Framework, the same forest management plan that, with one
significant amendment, addressed below, remains in effect
today.
The Forest Service contends that Sierra Forest’s claim was
rendered moot by the 2007 Amendment to the 2004 Frame-
work (“the 2007 Amendment”). It asserts that the 2007
Amendment eliminated the obligation to comply with the
monitoring requirements in Appendix E of the 2004 Frame-
work. It further asserts that the 2007 Amendment’s elimina-
tion of Appendix E’s monitoring requirements applies
retroactively so as to remove the obligation that the Forest
Service had in 2004 to comply with those monitoring require-
ments. The Forest Service relies on the language in the 2007
Amendment that provides that, for projects approved prior to
the effective date of the 2007 Amendment, including the Proj-
ect, “obligations relating to MIS [Management Indicator Spe-
cies] will have been met if the project record discloses
impacts the project may have on MIS habitat or populations
. . . . No other project-level analysis or disclosure require-
ments shall apply to these projects, including any particular
requirements related to MIS set forth in Appendix E.”
The parties contest whether the Forest Service had the
power to make a forest plan amendment that applies retroac-
tively. Judge Fisher agrees with the district court that the For-
est Service had that power, and, thus, that the 2007
Amendment eliminated the Forest Service’s pre-existing mon-
itoring requirements for the Project. Therefore, he would hold
that the district court was correct to grant summary judgment
on Sierra Forest’s first NFMA claim. I disagree.
[15] As Judge Fisher points out, the 2007 Amendment pur-
ports, by its own terms, to be retroactive. But the Amendment
cannot apply retroactively without statutory authority in the
NFMA. As we held in Friends of Southeasts’s Future v. Mor-
rison, 153 F.3d 1059, 1070 (9th Cir. 1998), the Forest Service
SIERRA FOREST LEGACY v. SHERMAN 6949
only has the authority to “change the legal consequences of
completed acts . . . if Congress conveys such authority in an
express statutory grant.” Our holding in Morrison was clear;
we wrote that the “Forest Service contends that retroactive
application of the area analysis provisions of the amended
Plan (or, more accurately, the lack thereof) is authorized by
NFMA. We disagree.” Id. (emphasis added).
In his opinion, Judge Fisher contends that even though
Morrison addresses the very issue before us, whether the
NFMA contains an express statutory grant that allows for
retroactive application of plan amendments, the opinion does
not control our decision in this case. He asserts that Morrison
considered only whether one section of the NFMA, 16 U.S.C.
§ 1604(i), provides authority for the Forest Service to promul-
gate retroactive amendments. His opinion further states that a
different provision of the NFMA, § 1604(f)(4), does provide
the “necessary express statutory grant” to enable the Forest
Service to promulgate a retroactive amendment. The Forest
Service made this argument in its brief on appeal in this case,
but it does not appear to have done so in Morrison. Having
failed to convince us in Morrison that § 1604(i) provides the
express statutory grant in the NFMA necessary for the adop-
tion of retroactive amendments, the Forest Service now
claims it has found a new express statutory grant in the same
statute.
[16] Although Morrison did not explicitly examine
§ 1604(f)(4), we did not limit our holding to whether
§ 1604(i) was retroactive; instead we held that the NFMA
does not provide the Forest Service with retroactive amending
authority. Moreover, it is irrelevant whether we examined the
whole statute in Morrison. “One three-judge panel of this
court cannot reconsider or overrule the decision of a prior
panel.” United States v. Gay, 967 F.2d 322, 327 (9th Cir.
1992). The only exception to this rule is when “the reasoning
or theory of our prior circuit authority is clearly irreconcilable
6950 SIERRA FOREST LEGACY v. SHERMAN
with the reasoning or theory of intervening higher authority.”
Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).5
Here, there is no intervening higher authority; indeed there
is no intervening authority of any kind: the relevant portions
of the NFMA are the same today as they were when we
decided Morrison, and the Forest Service could have argued
in that case that § 1604(f)(4) expressly granted retroactive
amending power. Thus, we have no authority to overrule our
previous decision, and are bound by Morrison. This rule
makes sense because we cannot continually re-litigate issues
that our court has already decided simply because a party puts
forth a new argument about why we should rule differently.
The rule makes even more sense when the same person or
organization is a party in both cases, and nothing prevented
him from raising the issue in the first case.
In United States v. Contreras (Contreras II), 593 F.3d 1135
(9th Cir. 2010) (en banc), we went en banc to withdraw a
three-judge panel opinion, United States v. Contreras
(Contreras I), 581 F.3d 1163 (9th Cir. 2009) that purported to
overrule several previous panel opinions. The en banc court
vacated the part of Contreras I dealing with the earlier opin-
ions but adopted the substantive portions, thus reaching the
same result as the panel. Because it was an en banc court it
was free to, and did, overrule the earlier opinions itself. The
Contreras I panel had sought to correct prior decisions that
had erroneously failed to consider a 1993 Amendment to the
Sentencing Guidelines and had relied instead on a line of
cases that pre-dated the 1993 Amendment. Even though all
parties agreed that the post-1993 panels should have consid-
ered the 1993 Amendment, only the en banc court had the
power to overrule those panel decisions. Id. at 1136. If it was
5
We are not reviewing a previous panel decision in the same case and
thus exceptions to the law of the case doctrine cannot apply. Cf. Gonzalez
v. Arizona, 624 F.3d 1162, 1191 (9th Cir. 2010); Jeffries v. Wood, 114
F.3d 1484, 1489 (9th Cir. 1997) (en banc).
SIERRA FOREST LEGACY v. SHERMAN 6951
improper for the Contreras I panel to overrule previous panel
decisions, it is certainly improper here where the relevant text
of the NFMA has not changed subsequent to Morrison. More-
over, even if the retroactivity question was not foreclosed by
our decision in Morrison, § 1604(f)(4) does not provide an
express statutory grant that allows for retroactive amend-
ments. Judge Fisher acknowledges that prospectivity is the
default rule in statutory interpretation. “[C]lear congressional
intent” is required in order to establish retroactive application.
Landgraf v. USI Film Prods., 511 U.S. 244, 272-73, 280
(1994). It is well established that a clear statement is required
in order to show this Congressional intent. See, e.g., INS v. St.
Cyr, 533 U.S. 289, 317 (2001). The Supreme Court has
explained the rationale behind the presumption of prospective
application as follows:
Because it accords with widely held intuitions about
how statutes ordinarily operate, a presumption
against retroactivity will generally coincide with leg-
islative and public expectations. Requiring clear
intent assures that Congress itself has affirmatively
considered the potential unfairness of retroactive
application and determined that it is an acceptable
price to pay for the countervailing benefits. Such a
requirement allocates to Congress responsibility for
fundamental policy judgments concerning the proper
temporal reach of statutes, and has the additional vir-
tue of giving legislators a predictable background
rule against which to legislate.
Landgraf, 511 U.S. at 272-73.
The relevant subsection in this case, 16 U.S.C.
§ 1604(f)(4), provides that:
Plans developed in accordance with this section shall
be amended in any manner whatsoever after final
adoption after public notice, and, if such amendment
6952 SIERRA FOREST LEGACY v. SHERMAN
would result in a significant change in such plan, in
accordance with the provisions of subsections (e)
and (f) of this section and public involvement com-
parable to that required by subsection (d) of this sec-
tion.
Judge Fisher concludes that the words “amended in any man-
ner whatsoever” provide the authority for the Forest Service
to make amendments that have a retroactive effect. However,
this sentence is far from a clear statement authorizing such
amendments; in fact, I do not believe that Judge Fisher’s
interpretation is even a plausible construction of that sentence.
The plain meaning of the words demonstrates that the sen-
tence is not referring to the effect of an amendment, but to
how an amendment may be made—the manner by which a
change may be made to the original plan.6
Context is critical for statutory interpretation: here, when
examined in the context of the rest of the subsection, it is even
6
Judge Fisher provides examples of previous uses of the phrase “retro-
active manner,” but the relevant question is not whether the phrase “retro-
active manner” can be used, it is whether one speaks of amending a statute
or a plan in a retroactive manner, and thus whether “amend in any manner
whatsoever” clearly authorizes amendments with retroactive effects. It
seems clear that “amend in any manner whatsoever” refers to how the
amendment may be made and not the effect that the amendment may have.
Although Judge Fisher says his examples show that “actions can be taken”
in a retroactive manner, all of his examples are of something applying or
operating in a retroactive manner. That is not an issue that is in dispute.
There is no doubt that Congress may provide that a statute or plan may
apply retroactively if it makes a clear statement that the statute or plan will
or may so apply. Judge Fisher provides no examples, however, of amend-
ments being made in a retroactive manner, and more important, he fails
to provide a single example of a case that uses the term “amended in a
retroactive manner.” Moreover, a search of all of the federal reporters fails
to turn up any such case. It is beyond dispute that laws can have retroac-
tive effects and can apply retroactively, but the fact that a law can apply
in a retroactive manner provides no support for the interpretation that
“amend in any manner whatsoever” is a clear statement authorizing
amendments that have a retroactive effect.
SIERRA FOREST LEGACY v. SHERMAN 6953
clearer that “amended in any manner whatsoever” is not a
clear statement about whether amendments can be given
retroactive effect. The subsection deals with the procedures
for amending a final plan. In fact, we have previously
described the subsection’s requirements as procedural rather
than substantive. Lands Council v. Martin, 529 F.3d 1219,
1227 (9th Cir. 2008).
The subsection first establishes that insignificant amend-
ments to a final plan may be adopted through any procedure
whatsoever.7 It goes on to state that significant amendments
must be adopted through the procedures set forth in subsec-
tions (d)-(f). The only cases that have examined 16 U.S.C.
§ 1604(f)(4) considered whether an amendment resulted in a
significant change in the plan such that the procedural
requirements for amending the plans set forth in subsections
(d), (e), and (f) apply. See, e.g., id. Under Judge Fisher’s
interpretation, Congress wrote one set of words that was
intended to address two critical but entirely unrelated matters
1) that a final plan can be amended to have a retroactive
effect; and 2) that any significant changes must be adopted
through the use of the principal procedures applicable to the
adoption of the plan itself, including even preparation of the
amendment by an interdisciplinary team in a publicly avail-
able document. See 16 U.S.C. § 1604(f)(1), (3). Although
opaque statutes are far too common, Judge Fisher’s interpreta-
tion stretches the bounds of reason, and I “decline to take such
a dim view of the legislative endeavor.” See In re Lorillard
Tobacco Co., 370 F.3d 982, 985 (9th Cir. 2004). At the abso-
lute least, the provision, with its omission of any reference to
retroactivity, does not by any means demonstrate “a clear
Congressional intent” to authorize amendments that have a
retroactive effect. See Landgraf, 511 U.S. at 272-73.
7
In full, the relevant clause reads, “amended in any manner whatsoever
after final adoption after public notice;” the reference to public notice fur-
ther establishes that this clause and subsection refer to procedural require-
ments and do not clearly authorize amendments that have a retroactive
effect.
6954 SIERRA FOREST LEGACY v. SHERMAN
Moreover, when engaging in statutory interpretation, we
must examine the whole section in which the language is
located. See U.S. v. van den Berg, 5 F.3d 439 (9th Cir. 1993).
Subsection (f) relates to procedures for developing the forest
plans. Subsection (f) is entitled “Required Provisions.” See
Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554
U.S. 33, 47 (2008) (noting that “statutory titles and section
headings are tools available for the resolution of a doubt about
the meaning of a statute.”) (internal quotation marks omitted).
Subsection (f)(1) requires the Plan to be embodied in one pub-
licly available document; Subsection (f)(2) requires the Plan
to be written and to include maps where necessary; Subsec-
tion (f)(3) requires that the Plan “be prepared by an interdisci-
plinary team;” Subsection (f)(5) requires the Plan to be
amended at least every fifteen years following public partici-
pation and the processes laid out in (d) through (f). Subsection
(f)(4), the subsection at issue here, requires that certain proce-
dures be used if significant amendments are made; if the
amendments are insignificant, then any procedure is appropri-
ate. Nowhere in this subsection is there a statement, let alone
a clear statement, about the retroactive effect of plan amend-
ments.
[17] Although “magic words” need not be invoked to
establish a retroactive application, see Alaska v. EEOC, 564
F.3d 1062, 1066-67 (9th Cir. 2009), the clear statement rule
requires more than a vaguely plausible statement. Therefore,
even were we able to revisit our holding in Morrison that the
NFMA does not provide for the retroactive effect of amend-
ments to forest plans, a fresh look at the statute would rein-
force our earlier holding. Accordingly, I conclude that the
2007 Amendment does not retroactively free the Forest Ser-
vice of its obligation to ensure that the Project complies with
the 2004 Framework’s population monitoring requirements as
they stood at the time the Project was approved.
The Forest Service also contends that, even if the 2007
Amendment did not retroactively eliminate the Forest Ser-
SIERRA FOREST LEGACY v. SHERMAN 6955
vice’s obligation to comply with the 2004 Framework’s popu-
lation monitoring requirements in approving the Project, the
2007 Amendment rendered Sierra Forest’s claim moot by
eliminating any effective relief for its failure to do so. North-
west Environmental Defense Center v. Gordon, 849 F.2d
1241, 1244 (9th Cir. 1988). The defendant’s “burden of dem-
onstrating mootness is a heavy one.” Northwest Envm’t Def.
Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988). More-
over, “[t]he basic question in determining mootness is
whether there is a present controversy as to which effective
relief can be granted.” Therefore, “in deciding a mootness
issue, ‘the question is not whether the precise relief sought at
the time the application for an injunction was filed is still
available. The question is whether there can be any effective
relief.’ ” Id. (quoting Garcia v. Lawn, 805 F.2d 1400, 1403
(9th Cir. 1986)).
[18] In this case, there is effective relief for the Forest Ser-
vice’s alleged failure to comply with the NFMA in approving
the Project. That relief would consist of vacating the approval
of the Project. At that point, the Forest Service could once
again conduct its process for approving the Basin Project. In
conducting that approval process, the Forest Service would
need to ensure that the Project complies with the then-
applicable Forest Plan, which may be the 2007 Amendment,
or perhaps a subsequent Amendment. Regardless, vacating
the approval of the Project would provide effective relief,
although perhaps not the precise relief sought by Sierra For-
est. The need to go through a new approval process alone is
the effective relief that prevents the Forest Service from meet-
ing its heavy burden of demonstrating mootness. Accordingly,
this matter is remanded to the district court so that it may now
determine whether the Project complies with the 2004 Frame-
work as it existed prior to the 2007 Amendment.8
8
The district court found that the Forest Service had not performed “ac-
tual quantitative population monitoring” in approving the Project, but had
6956 SIERRA FOREST LEGACY v. SHERMAN
D.
Sierra Forest’s second claim is that the 2004 Framework
violates the NFMA because it will not maintain species via-
bility. Sierra Forest contends that the 2004 Framework
depends on an “adaptive management strategy” to maintain
species viability, and that the adaptive management strategy
is insufficient for that purpose.
The 1982 Rule requires the Forest Service to develop forest
management plans that will “maintain viable populations of
existing . . . species in the planning area.” 36 C.F.R. § 219.19
(2000). The 1982 Rule allows the Service to designate certain
species as “management indicator species,” which serve as
bellwethers or “class representative[s]” for related species.
Inland Empire Public Lands Council v. U.S. Forest Service,
88 F.3d 754, 762 n.11 (9th Cir. 1996). The Forest Service
must monitor the population trends of these management indi-
cator species in order to determine how the Forest Service’s
“management activities” — such as timber sales and grazing
allocations — are affecting species. Id. at § 219.19(a)(1)-(7).
The 2004 Framework’s adaptive management strategy is, in
theory at least, quite straightforward: the Forest Service will
monitor projects that implement the 2004 Framework, assess
whether those projects are threatening species viability and, if
instead relied on habitat analysis. Sierra Forest, 573 F. Supp. 2d at 1334.
It then questioned whether the habitat analysis that the Service had per-
formed satisfied the requirements of the 2004 Framework. It also ques-
tioned whether the habitat analysis served as a reliable proxy for changes
in population given the Service’s admitted lack of knowledge regarding
the connection between habitat and population trends for many manage-
ment indicator species. Id. at 1334. However, because the district court
concluded that the 2007 Amendment had mooted Sierra Forest’s claim, it
cut short its review of the sufficiency of the Forest Service’s monitoring.
The questions it raised with respect to the unamended 2004 Framework,
and those it didn’t even reach, are serious indeed and require thorough
examination upon remand.
SIERRA FOREST LEGACY v. SHERMAN 6957
so, modify the Framework. The specifics of the adaptive man-
agement strategy were originally laid out in Appendix E of
the 2001 Framework, which was adopted by the 2004 Frame-
work. We described the monitoring component of the strategy
in our decision in Earth Island Institute v. United States For-
est Service, 442 F.3d 1147, 1173-76 (9th Cir. 2006). To sat-
isfy the requirements of the 1982 Rule, the Forest Service
committed in the 2004 Framework to a “management
approach . . . [that] will provide the fish and wildlife habitat
and other ecological conditions necessary to maintain well-
distributed viable populations of vertebrate species in the
planning area, and maintain the diversity of plants and ani-
mals.”
Sierra Forest does not dispute the efficacy of adaptive man-
agement as a general matter. Rather, it contends that the adap-
tive management strategy in the 2004 Framework is too
vague. It asserts that the Framework’s strategy will not main-
tain species viability because it does not include an effective
monitoring component, or guidelines explaining “when or
how the 2004 Framework will be altered if monitoring reveals
that the plan is impacting old forest wildlife.” Therefore,
Sierra Forest contends, the 2004 Framework violates the
NFMA.
I do not, however, address the merits of Sierra Forest’s
facial challenge to the 2004 Framework, because that claim is
not ripe for adjudication. The “ripeness doctrine is drawn both
from Article III limitations on judicial power and from pru-
dential reasons for refusing to exercise jurisdiction.” Nat’l
Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803,
808 (2003) (internal quotation marks omitted). A basic ratio-
nale for that doctrine is to “prevent the courts, through avoid-
ance of premature adjudication, from entangling themselves
in abstract disagreements over administrative policies.”
Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967),
abrogated on other grounds by Califano v. Sanders, 430 U.S.
99 (1977).
6958 SIERRA FOREST LEGACY v. SHERMAN
In Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 734
(1998), the Supreme Court held that an NFMA challenge to
a forest management plan is not ripe for adjudication until the
“Plan then matters, i.e., if the Plan plays a causal role with
respect to the . . . imminent harm from logging.” As Judge
Fisher recognizes in his opinion, we may only consider the
facial challenge to the extent that the “Basin Project threatens
species viability precisely because of flaws in the 2004
Framework.”
[19] In this case, the district court must first determine
whether the Project complied with the 2004 Framework
before a facial challenge to the 2004 Framework based on that
Project is ripe for adjudication. As discussed above, Sierra
Forest alleges that, in granting approval of the Project, the
Forest Service did not comply with the population monitoring
provisions of the 2004 Framework then in effect. If, as Sierra
Forest alleges, the approval of the Project did not comply with
the 2004 Framework, then there is no showing that there is a
causal relationship between any alleged deficiencies in the
Project and any alleged defect in the Framework itself.
Indeed, deficiencies in the Project may stem from a failure to
comply with the Framework, rather than a failure of the
Framework to comply with the NFMA. Because we do not
know whether the Project’s approval complied with the
Framework, the Framework’s alleged defects under the
NFMA do not currently “matter;” they may play no causal
role with respect to any imminent logging. The very specula-
tion about the cause of the harm is the reason why this claim
is not ripe.9
I recognize that the Sierra Club’s claims in Ohio Forestry
were more abstract than Sierra Forest’s claims in this case,
because in Ohio Forestry there was no Project at issue that the
court could use to evaluate the 2004 Framework. Here, Sierra
9
The plaintiffs have established standing; therefore, the imminent harm,
were there any, would be to the plaintiffs and their interests.
SIERRA FOREST LEGACY v. SHERMAN 6959
Forest contends that there is a Project “at issue,” but unless
that Project’s approval complied with the 2004 Framework, it
is not a project we can use to evaluate the legality of the
Framework. To do so would run counter to our admonition in
Wilderness Society v. Thomas, 188 F.3d 1130, 1133 (9th Cir.
1999), that we must evaluate the harm when it is “tangible,
rather than theoretical.”
[20] Therefore, as discussed above, this matter is
remanded to the district court to determine in the first instance
whether the Forest Service complied with the 2004 Frame-
work’s population monitoring requirements when it approved
the Project. It is not appropriate to decide whether the 2004
Framework complied with the NFMA before the district court
considers that threshold issue. Because the district court only
evaluated the Project under the 2004 Framework with the
2007 Amendment, the question of whether the Project’s
approval complied with the Framework as it existed at the
time of the approval is properly one for the district court now
to decide in the first instance.
[21] The district court has already purported to decide
Sierra Forest’s facial challenge to the 2004 Framework. How-
ever, it should not have done so because that claim was not
ripe, and will not be at least until after the district court prop-
erly decides whether the Project’s approval complied with the
2004 Framework. The district court should therefore strike the
part of its prior decision which evaluated the facial challenge.
On remand, if it decides that the Project’s approval did not
comply with the 2004 Framework then in effect, it should not
reach Sierra Forest’s facial challenge. On the other hand, if
the district court decides that the Project’s approval did com-
ply with the then applicable 2004 Framework, the district
court should then re-examine Sierra’s Forest challenge, which
would then be ripe for review.
E.
The district court erred in granting summary judgment for
the Forest Service on Sierra Forest’s first NFMA claim
6960 SIERRA FOREST LEGACY v. SHERMAN
because it applied the 2007 Amendment retroactively. More-
over, Sierra Forest’s second NFMA claim, a facial challenge
to the 2004 Framework, is not ripe for review until after the
district court decides the first claim under the 2004 Frame-
work without the 2007 Amendment. Accordingly, the district
court’s decision on those issues is vacated and the case is
remanded for further proceedings in light of the opinions on
this appeal.
Judge Noonan concurs in the result.
AFFIRMED in part and VACATED and REMANDED in
part. The parties shall bear their own costs.
FISHER, Circuit Judge, dissenting in part:
I respectfully dissent from Judge Reinhardt’s holding on
the NFMA claim.
Introduction
The National Forest Management Act (NFMA)
sets forth the statutory framework and specifies the
procedural and substantive requirements under
which the Forest Service is to manage National For-
est System lands. Procedurally, the NFMA requires
the Forest Service to develop a forest plan for each
unit of the National Forest System. 16 U.S.C.
§ 1604(a). In developing and maintaining each plan,
the Forest Service is required to use “a systematic
interdisciplinary approach to achieve integrated con-
sideration of physical, biological, economic, and
other sciences.” Id. § 1604(b). After a forest plan is
developed, all subsequent agency action . . . must
SIERRA FOREST LEGACY v. SHERMAN 6961
comply with the NFMA and be consistent with the
governing forest plan. Id. § 1604(i).
Lands Council, 537 F.3d at 988-89. NFMA requires the Sec-
retary of the Interior to promulgate regulations for resource
management addressing numerous concerns, including pro-
viding “for diversity of plant and animal communities based
on the suitability and capability of the specific land area in
order to meet overall multiple-use objectives,” 16 U.S.C.
§ 1604(g)(3)(B), and permitting “increases in harvest levels
based on intensified management practices,” id.
§ 1604(g)(3)(D).
The 1982 Rule — an implementing regulation I discuss at
length below — states in part,
Fish and wildlife habitat shall be managed to main-
tain viable populations of existing native and desired
non-native vertebrate species in the planning area.
For planning purposes, a viable population shall be
regarded as one which has the estimated numbers
and distribution of reproductive individuals to insure
its continued existence is well distributed in the plan-
ning area. In order to insure that viable populations
will be maintained, habitat must be provided to sup-
port, at least, a minimum number of reproductive
individuals and that habitat must be well distributed
so that those individuals can interact with others in
the planning area.
36 C.F.R. § 219.19 (1983). To that end, the Rule requires
selection of management indicator species (“MIS”); statement
of planning alternatives in terms of habitat and population
trends; interagency consultation concerning MIS; consider-
ation of the effects of visitor usage, pests and fire manage-
ment on wildlife; monitoring of MIS and preservation of
habitat critical to threatened or endangered species. See id.
§ 219.19(a)(1)-(7).
6962 SIERRA FOREST LEGACY v. SHERMAN
A. Ripeness
The Forest Service first attacks Sierra Forest’s NFMA chal-
lenge as unripe. When assessing ripeness, we must consider:
“(1) whether delayed review would cause hardship to the
plaintiffs[,] (2) whether judicial intervention would inappro-
priately interfere with further administrative action[ ] and (3)
whether the courts would benefit from further factual devel-
opment of the issues presented.” Ohio Forestry Ass’n, 523
U.S. at 733; see also Abbott Labs. v. Gardner, 387 U.S. 136,
148-49 (1967) (reasoning that ripeness prevents premature
adjudication and entanglement in abstract policy disagree-
ments and insulates administrative decisionmaking until poli-
cies are concretely applied), overruled on other grounds by
Califano v. Sanders, 430 U.S. 99, 104 (1977). Applying these
guidelines, Ohio Forestry Association squarely held that a
facial NFMA attack on an LRMP such as the 2004 Frame-
work, outside of the context of a concrete project or applica-
tion, is unripe. See 523 U.S. at 732-37. If “plaintiffs allege
that the Forest Service’s general methodology . . . in the For-
est Plan was flawed, causing site-specific harm,” however,
their claim is ripe for review. Wilderness Soc’y v. Thomas,
188 F.3d 1130, 1134 (9th Cir. 1999) (emphasis added); see
also Ohio Forestry Ass’n, 523 U.S. at 734 (noting the avail-
ability of a later challenge to an LRMP “if (but only if) the
present Plan then matters, i.e., if the Plan plays a causal role
with respect to the future, then-imminent, harm from log-
ging”). Moreover, if “the site-specific injury . . . is alleged to
have been caused by a defect in the Forest Plan, [a court] may
consider whether the Forest Service complied with the Act in
making its general . . . determinations in the Forest Plan.”
Wilderness Soc’y, 188 F.3d at 1134; see also Sierra Club v.
Peterson, 228 F.3d 559, 570-72 (5th Cir. 2000) (en banc)
(Higginbotham, J., concurring) (“Once the plaintiff identifies
a sale, it can then direct the court’s attention to those steps
leading up to and including the sale’s implementation that
render the sale illegal.”).
SIERRA FOREST LEGACY v. SHERMAN 6963
Contrary to Sierra Forest’s assertions, the Basin Project
does not uniformly “open[ ] the door to [Sierra Forest’s]
broader challenge to the 2004 Framework[ ].” Unlike allega-
tions needed to establish standing, the mere fact that a plain-
tiff has identified site-specific sales in its pleadings does not
permit a programmatic challenge under NFMA. See, e.g.,
Sierra Club v. Peterson, 228 F.3d at 567. A site-specific proj-
ect will implement only portions of an LRMP, so a facial
challenge to all aspects of the framework would require us to
continue to assess aspects of the LRMP in the abstract. This
would make Ohio Forestry Association a source of delay with
little practical benefit. However, to the extent that the Basin
Project threatens species viability precisely because of flaws
in the 2004 Framework, a NFMA challenge to those program-
matic flaws is ripe for adjudication. Moreover, we must con-
sider environmental degradation in the Basin Project in a
cumulative context in order to preclude a death by a thousand
cuts.
In sum, Sierra Forest’s facial NFMA claim against the 2004
Framework is not ripe for adjudication (and never will be).
Sierra Forest may, however, challenge shortcomings in the
2004 Framework to the extent they cause site-specific harm
through implementation in the Basin Project. The parties do
not dispute that Sierra Forest’s NFMA challenge to the Basin
Project is ripe.
B. Basin Project: Species Monitoring
Sierra Forest argues that the Basin Project falls short of
species monitoring required at the project level by the 2004
Framework. See Earth Island Inst. v. U.S. Forest Serv., 442
F.3d 1147, 1175 (9th Cir. 2006) (requiring project-level moni-
toring, even under the 2000 Transition Rule, because the 2004
Framework “expressly require[d] ‘population monitoring’ ” of
the species at issue), abrogated on other grounds by Winter,
129 S. Ct. at 375; see also 16 U.S.C. § 1604(i) (requiring site-
specific projects to comply with the existing LRMP). How-
6964 SIERRA FOREST LEGACY v. SHERMAN
ever, in 2007, the Forest Service amended the monitoring
requirements of the 2004 Framework. The Forest Service
argues that no inconsistency remains between the amended
2004 Framework and the Basin Project’s species monitoring
provisions.
The 2007 Amendment specifies that “[o]ngoing monitoring
of the selected species identified in [the 2004 Framework]
will not be changed in this decision.” Nor does the 2007
Amendment “drop the adaptive management approach devel-
oped in the” 2004 Framework. The 2007 Amendment, how-
ever, requires “monitoring of MIS population trends and
determining relationships to habitat changes at the planning-
area scale during forest plan implementation” and eliminates
species “monitoring requirements in the project area or at the
project level.” “The sole MIS requirement that is applied at
the project-level is the assessment of habitat for” monitoring
indicator species. The Amendment is expressly retroactive.
Sierra Forest does not contend that the Basin Project is
inconsistent with the habitat monitoring provisions of the
2007 Amendment. Rather, it argues that the Forest Service is
precluded from applying the 2007 Amendment retroactively.
In Friends of Southeast’s Future v. Morrison, 153 F.3d 1059,
1070 (9th Cir. 1998), we addressed a forest plan amendment
that purported, in part, to remove certain analytical require-
ments prior to approving a timber sale. We rejected the
amendment’s retroactivity provision, holding that “agency
authority to change the legal consequences of completed acts
only exists if Congress conveys such authority in an ‘express
statutory grant.’ ” Id. (quoting Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (1988)); see also Landgraf v. USI
Film Prods., 511 U.S. 244, 272, 280 (1994) (holding that
“prospectivity remains the appropriate default rule” in statu-
tory interpretation and requiring “clear congressional intent”
for retroactive application); Southwest Ctr. for Biological
Diversity v. U.S. Dep’t of Agric., 314 F.3d 1060, 1062 (9th
Cir. 2002) (permitting application of legislation to a suit pend-
SIERRA FOREST LEGACY v. SHERMAN 6965
ing at the time of enactment only because the statute did not
retroactively affect past action).
The Forest Service argued in Morrison that § 1604(i) of
NFMA authorized retroactive application of the amendment,
but we disagreed:
The Forest Service contends that such a grant of
authority is contained in 16 U.S.C. § 1604(i), which
provides that “instruments for the use and occupancy
of National Forest System lands . . . currently in
existence shall be revised as soon as practicable to
be made consistent with [LRMPs.]” However, by its
plain language, this provision only applies to the
revision of instruments to achieve consistency with
forest plans, not to the revision of the forest plans
themselves.
Morrison, 153 F.3d at 1070.10 That holding does not preclude
the Forest Service’s argument in this case that a different
NFMA provision — § 1604(f)(4) — does provide the requi-
site express authority to apply the 2007 Amendment retroac-
tively here. I respectfully disagree with Judge Reinhardt’s
10
Section 1604(i) states in full:
(i) Consistency of resource plans, permits, contracts, and other
instruments with land management plans; revision
Resource plans and permits, contracts, and other instruments for
the use and occupancy of National Forest System lands shall be
consistent with the land management plans. Those resource plans
and permits, contracts, and other such instruments currently in
existence shall be revised as soon as practicable to be made con-
sistent with such plans. When land management plans are
revised, resource plans and permits, contracts, and other instru-
ments, when necessary, shall be revised as soon as practicable.
Any revision in present or future permits, contracts, and other
instruments made pursuant to this section shall be subject to valid
existing rights.
16 U.S.C. § 1604(i).
6966 SIERRA FOREST LEGACY v. SHERMAN
reading of Morrison as going beyond the merits of the statu-
tory argument made to that panel, to announce a blanket inter-
pretation of the whole of NFMA.
United States v. Contreras (Contreras II), 593 F.3d 1135
(9th Cir. 2010) (en banc) (per curiam), which Judge Reinhardt
also invokes, is not to the contrary. There, the three-judge
panel had interpreted the same provision of the Sentencing
Guidelines, but gave a new interpretation to the same lan-
guage and purported to expressly overrule prior cases. See id.
at 1136. Nothing in Contreras II, or in Miller v. Gammie, 335
F.3d 889 (9th Cir. 2003) (en banc), precludes us from distin-
guishing a previous panel ruling based on a principled reading
of the prior panel’s articulated holding. The importance of
imposing reasonable limits on the precedential value of
related decisions becomes evident when one considers the text
of § 1604(f)(4) on its face:
Plans developed in accordance with this section shall
. . . be amended in any manner whatsoever after final
adoption after public notice, and, if such amendment
would result in a significant change in such plan, in
accordance with the provisions of subsections (e)
and (f) of this section and public involvement com-
parable to that required by subsection (d) of this sec-
tion.
§ 1604(f)(4) (emphasis added). The term “in any manner
whatsoever” logically includes “in a retroactive manner.” We
have held that clear statement rules can be satisfied through
similar general statements; “magic words” need not be
invoked. Alaska v. EEOC, 564 F.3d 1062, 1066-67 (9th Cir.
2009) (en banc); see also Bugenig v. Hoopa Valley Tribe, 229
F.3d 1210, 1219 (9th Cir. 2000) (holding that a “ ‘notwith-
standing proviso,’ which is an easily invoked, Court-approved
‘gold standard’ for delegation,” is an “express” delegation
sufficient to meet a clear statement rule).
SIERRA FOREST LEGACY v. SHERMAN 6967
Contrary to Judge Reinhardt’s assertion, it is unremarkable
to speak of an action being taken in a retroactive “manner.”
Maldonado-Galindo v. Gonzales, 456 F.3d 1064, 1067 (9th
Cir. 2006) (“Congress need not use a set phrase to indicate
when a statute is to be given retroactive effect; rather, the stat-
ute need only evince Congress’s ‘clear intent’ that legislation
apply in a retroactive manner.”). See Eastern Enters. v. Apfel,
524 U.S. 498, 524 (1998) (“legislation operates in a retroac-
tive manner”); Harper v. Va. Dep’t of Taxation, 509 U.S. 86,
110 (1993) (Kennedy, J., concurring in part) (“applied in a
retroactive manner”); SEC v. Gemstar TV Guide Int’l, Inc.,
367 F.3d 1087, 1088 (9th Cir. 2004) (“operates in an uncon-
stitutionally retroactive manner”); Home Loan Bank Bd. v.
Mallonee, 192 F.2d 336, 370 (9th Cir. 1952) (“amendments
operated in this retroactive manner”); see also Garcia-
Ramirez v. Gonzales, 423 F.3d 935, 952 n.5 (9th Cir. 2005)
(Gould, J., concurring) (“operate in an impermissibly retroac-
tive manner”) (paraphrasing Velasquez-Gabriel v. Crocetti,
263 F.3d 102, 108 (4th Cir. 2001)).
These citations show that “manner” need not mean “pro-
cess,” and if Congress meant process then it could have said
so. Congress chose the phrase “any manner whatsoever,”
which connotes broad authority. See United States v. Yoshida,
303 F.3d 1145, 1152 (9th Cir. 2002) (“The statute itself con-
clusively indicates that Congress intended a broad definition
of bring: ‘brings to or attempts to bring to the United States
in any manner whatsoever.’ ”) (quoting 8 U.S.C. § 1324(a)(2)
(emphasis added)). Judge Reinhardt’s attempt to exclude the
effect of an amendment from the Forest Service’s authority to
amend in any manner whatsoever is unpersuasive.
Further, nothing about § 1604 generally, or § 1604(f)(4)
specifically, suggests that the “manner” of amendment is a
procedural formality. First, we have previously held that
§ 1604(f)(4) is a broad grant of power to the agency. See
Lands Council v. Martin, 529 F.3d 1219, 1227-28 (9th Cir.
2008) (holding that Forest Service could amend a LRMP in
6968 SIERRA FOREST LEGACY v. SHERMAN
a limited manner thereby avoiding a “significant” amendment,
which would have required “a lengthy and detailed amend-
ment process”). That Lands Council focused on procedure is
unsurprising because that was that nature of the appellant’s
argument. See id. In Forest Guardians v. Dombeck, 131 F.3d
1309 (9th Cir. 1997) (per curiam), we had previously agreed
that § 1604(f)(4) gave the Forest Service authority to choose
whether amendments would have prospective or retrospective
effect. See id. at 1312-13 (“Congress intended to grant the
Secretary discretion in amending existing forest plans, includ-
ing the discretion to determine how those amendments will be
implemented.”). Although Forest Guardians did not expressly
hold that amendments could be applied in a retroactive man-
ner, it clearly implied as much.
Second, the context of § 1604(f)(4) is not limited to pro-
cess. In § 1604(f)(4) itself, the second clause requires signifi-
cant amendments to adhere to the requirements of § 1604(e),
which enforces the substantive requirements of the Multiple-
Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531.11
11
The Multiple-Use Sustained-Yield Act requires:
[M]anagement of all the various renewable surface resources of
the national forests so that they are utilized in the combination
that will best meet the needs of the American people; making the
most judicious use of the land for some or all of these resources
or related services over areas large enough to provide sufficient
latitude for periodic adjustments in use to conform to changing
needs and conditions; that some land will be used for less than
all of the resources; and harmonious and coordinated manage-
ment of the various resources, each with the other, without
impairment of the productivity of the land, with consideration
being given to the relative values of the various resources, and
not necessarily the combination of uses that will give the greatest
dollar return or the greatest unit output.
16 U.S.C. § 531(a), and
the achievement and maintenance in perpetuity of a high-level
annual or regular periodic output of the various renewable
resources of the national forests without impairment of the pro-
ductivity of the land.
16 U.S.C. § 531(b).
SIERRA FOREST LEGACY v. SHERMAN 6969
Similarly, the rest of § 1604 is a mixture of substance and
process, addressing the life cycle of LRMPs, from develop-
ment criteria, see § 1604(b), to public participation, see
§ 1604(d), to directives for substantive regulations, see
§ 1604(g), to effective dates and applying revised forest plans,
see § 1604(i)&(j). Judge Reinhardt’s assertion that somehow
retroactive amendment is incompatible with that list is not
persuasive.
I would hold that the 2007 Amendment governs Sierra For-
est’s NFMA claim that the Basin Project is inconsistent with
project-level species monitoring provisions found in the 2004
Framework. Sierra Forest does not contest that any inconsis-
tency exists between the Basin Project and the 2007 Amend-
ment project-level monitoring requirements. Any
inconsistency between the Basin Project and the unamended
2004 Framework is moot. I would therefore affirm the district
court’s denial of Sierra Forest’s site-specific NFMA monitor-
ing claim.
C. 2004 Framework: Species Viability
My conclusion that the Basin Project is consistent with the
forest plan leads me to disagree with Judge Reinhardt’s con-
clusion that Sierra Forest’s challenge to the 2004 Framework
as applied in the Basin Project is not ripe. Sierra Forest’s
framework-level NFMA claim is premised on application of
the 1982 Rule, 36 C.F.R § 219.19 (1982), the restrictive regu-
lation I described above, to the 2004 Framework. Before
advancing to the substance of Sierra Forest’s claim, I must
first assess the extent to which that decades-old provision
continues to govern LRMPs.
The transitional provisions of the 2000 Rule (the “2000
Transition Rule”) govern the revision and amendment of
LRMPs by the Forest Service. See 36 C.F.R. § 219.35 (2009);
see also National Forest System Land and Resource Manage-
ment Planning, 74 Fed. Reg. 67059-01, 67060 (Dec. 18,
6970 SIERRA FOREST LEGACY v. SHERMAN
2009) (noting that the 2000 Transition Rule remains in place
pursuant to an injunction). Under the 2000 Transition Rule, “a
responsible official may elect to continue or to initiate new
plan amendments or revisions under the 1982 [Rule].” 36
C.F.R. § 219.35(b); see also Citizens for Better Forestry v.
U.S. Dep’t of Agric., 341 F.3d 961, 965-68 (9th Cir. 2003)
(explaining development of the 2000 Rule and the role of its
transition provisions); 74 Fed. Reg. at 67060 (explaining that
all substantive NFMA regulations concerning LRMPs since
the 1982 Rule have been superseded or enjoined). The Forest
Service promulgated the 2004 Framework using the 1982
Rule and does not challenge its applicability in this suit.
Moreover, in a separate suit we specifically held that the 2004
Framework is governed by the 1982 Rule under the 2000
Transition Rule. See Earth Island Inst. v. U.S. Forest Serv.,
442 F.3d 1147, 1174 (9th Cir. 2006), abrogated on other
grounds by Winter, 129 S. Ct. at 375. Therefore, I proceed on
the assumption the 1982 Rule applies here.
The procedural impediments and regulatory amendments
described in Parts A and B, supra, whittle away Sierra For-
est’s NFMA claims to one narrow issue: whether the 2004
Framework violates NFMA and causes harm through imple-
mentation in the Basin Project. Specifically, Sierra Forest
contends that the 2004 Framework fails to ensure compliance
with its own adaptive management goals, violating the 1982
Rule’s requirements concerning species viability. At the proj-
ect level, Sierra Forest argues that the Basin Project exempli-
fies a broader failure to conduct MIS monitoring necessary
for a rigorous adaptive management compliance mechanism.
Because the Chief of the Forest Service concluded that “man-
aging habitat to maintain viable populations of the California
spotted owl, the Pacific fisher, and the American marten can
only be assured by using subsequent site-specific evaluations
and the adaptive management and monitoring strategy,” the
Forest Service has conceded that the 2004 Framework’s
NFMA compliance is contingent on “a treatment, feedback,
and adjustment system to carefully manage risks to habitats.”
SIERRA FOREST LEGACY v. SHERMAN 6971
As a preliminary matter, NFMA requires sufficient disclo-
sure for a court to be able to “ascertain from the record that
the Forest Service is in compliance” with the statute and regu-
lations. Native Ecosystems Council, 418 F.3d at 963. In
response to the Chief’s prioritization of adaptive management,
the Regional Forester published a 10-page supplemental adap-
tive management and monitoring strategy setting a review and
feedback process and establishing research questions concern-
ing old forest species. This plan provides adequate assurances
that adaptive management will occur, fulfilling NFMA’s dis-
closure requirement.
Sierra Forest urges that adaptive monitoring is ineffective
without fixed guidelines concerning “when or how the 2004
Framework will be altered if monitoring reveals that the plan
is impacting old forest wildlife.” However, the fixed regime
that Sierra Forest demands would eliminate use of new infor-
mation learned through management, undermining the basic
premise of adaptive management. The formal outline of adap-
tive management goes one step further than mere notice that
“a monitoring plan will be developed and implemented
through an iterative process,” which a district court has found
insufficient to satisfy NFMA. Western Watersheds Project v.
U.S. Forest Serv., No 05-189, 2006 WL 292010, at *10 (D.
Idaho Fed. 7, 2006). Sierra Forest also urges that “quantified
objectives and required mitigation measures” are required,
based on Natural Resources Defense Council v. Kempthorne,
506 F. Supp. 2d 322 (E.D. Cal. 2007). However, Kempthorne
applied the ESA, which contains the more stringent require-
ment that mitigation measures are “certain to occur.” Id. at
350, 356; see also Animal Welfare Inst. v. Beech Ridge
Energy LLC, 675 F. Supp. 2d 540, 580 (D. Md. 2009) (find-
ing that “entirely discretionary adaptive management” is
insufficient to eliminate impermissible risk under the ESA).
No such certainty is required under NFMA unless and until
species viability is threatened. According to the Chief For-
ester, monitoring and adaptive management provide an “as-
surance” that management under the 2004 Framework will
6972 SIERRA FOREST LEGACY v. SHERMAN
not reach a point where species viability is threatened at the
framework level, although if adaptive management were inef-
fective, long-term viability would not be assured.
The remaining question is whether the Basin Project dem-
onstrates that monitoring necessary to adaptive management
will not be carried out in the absence of more enforceable
guidelines. Sierra Forest contends that this case is “identical”
to Earth Island Institute v. U.S. Forest Service, 442 F.3d at
1173-76. In Earth Island Institute, we addressed two forest
restoration projects undertaken pursuant to the El Dorado
National Forest LRMP, which is in turn subject to the 2004
Framework. See id. at 1153-54. Earth Island alleged that the
projects violated NFMA by failing to monitor two native bird
species that the 2004 Framework expressly subjected to “pop-
ulation monitoring.” See id. at 1173, 1175. We held that reli-
ance on stale monitoring data without “current or accurate
field studies” or a factual basis for determinations of critical
habitat levels constituted arbitrary and capricious action under
NFMA. Id. at 1175-76.
The crucial distinction between Earth Island Institute and
the instant case is that there is no indication that — at least
at the project level — habitat monitoring is insufficient to pro-
vide needed information for adaptive monitoring. Although
the 2004 Framework, through adoption of 2001 Framework
MIS rules, originally “allow[ed] for a very limited degree of
habitat monitoring in lieu of actual population monitoring,”
id. at 1173, the 2007 Amendment shifted project-level moni-
toring to a habitat model. The 2007 Amendment also reduced
the list of MIS to those species subject to “[p]roven monitor-
ing protocols” and whose “population changes are believed to
indicate the effects of land management activities.”
Although the 2007 Amendment continues to list the Cali-
fornia spotted owl and American marten as MIS, it does not
require monitoring of fisher or northern goshawk populations.
A high level of uncertainty concerning the effects of manage-
SIERRA FOREST LEGACY v. SHERMAN 6973
ment or existing population trends for these two species rea-
sonably eliminates them from use as indicators of forest
health, but the elimination of those species as MIS generates
concerns regarding the ability of the 2004 Framework adap-
tive monitoring protocols to protect their viability, as required
by NFMA. Cf. Native Ecosystems Council v. Tidwell, 599
F.3d 926, 933 (9th Cir. 2010) (requiring particular scrutiny for
reliability and accuracy when the Forest Service engages in
proxy-based monitoring). On the other hand, the 2004 Frame-
work SEIS indicates that the fisher and northern goshawk
share habitat preferences with the California spotted owl and
marten, requiring large trees, canopy cover, snags and coarse,
woody debris. Most importantly, the 2004 Framework contin-
ues to require population monitoring at the framework level,
which is the level at which the 1982 Rule continues to apply.
Because adaptive management is “an area involving a high
level of technical expertise,” a court must defer to the agen-
cy’s determination of the amount of monitoring necessary to
support that policy, so long as some firm commitment is
made. Therefore, the adaptive monitoring protocols contained
in the 2004 Framework are sufficient to protect species viabil-
ity, as required by NFMA and the 1982 Rule.
For the foregoing reasons, I respectfully dissent on the res-
olution of the NFMA claim and would affirm the district
court.
NOONAN, Circuit Judge, concurring and dissenting:
For the reasons stated in my concurrence in Rey, I concur
in the result reached in Judge Reinhardt’s opinion as to the
NFMA claims. For the same reasons, I dissent from Judge
Fisher’s opinion with respect to the NEPA claims.