Conservation Northwest v. Harris Sherman
715 F.3d 1181
| 9th Cir. | 2013Background
- Conservation Northwest and allied groups sued the Agencies challenging changes to Survey and Manage under the Northwest Forest Plan.
- A district court approved a settlement as a consent decree resolving the litigation.
- DR. Johnson Lumber challenged the decree as improper for circumventing statutory rulemaking procedures.
- Court held that the decree effectively amended Survey and Manage, triggering FLPMA/NFMA/NEPA procedures.
- O&C Act issues were argued but deemed waived due to lack of below-record development and was not addressed on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the consent decree amend an agency rule without proper procedures? | Johnson contends decree violates FLPMA/NFMA/NEPA | Appellees say decree is a judicial act not subject to agency procedures | Yes, decree impermissibly amends without required procedures |
| Waiver of O&C Act preclusion argument | Johnson raised O&C Act issue below | Appellees say issue not properly raised below | Waived on appeal |
Key Cases Cited
- United States v. ITT Cont’l Baking Co., 420 F.2d 223 (U.S. 1975) (consent decrees have both contract and judicial-decree attributes)
- Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501 (U.S. 1986) (dual character of consent decrees; different treatment for purposes)
- Boody, Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549 (9th Cir. 2006) (FLPMA procedures required for changes to Survey and Manage; NEPA linked)
- Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 672 F.3d 1160 (9th Cir. 2012) (consent decree temporary relief; broader rulekeeping for procedural compliance)
- United States v. Carpenter, 526 F.3d 1237 (9th Cir. 2008) (settlement without FLPMA procedures reviewable; informs here)
- City of New York v. Clinton, 985 F. Supp. 168 (D.D.C. 1998) (laws differing from consented-to; public-law effect)