Posted on May 22, 2013 by Seth Jaffe
In a decision that should not have come as a surprise to anyone, the 9th Circuit Court of Appeals ruled late last month, in Conservation Northwest v. Sherman, that the Bureau of Land Management and other agencies implementing the Northwest Forest Plan could not amend the NFP without complying with the procedural requirements of the Federal Land Policy Management Act. The rationale of the decision should apply far more broadly than just the FLPMA, however. It should apply to any action by any agency purporting to amend agency regulations that would otherwise be subject to procedural requirements, such as notice-and-comment rulemaking, without complying with those procedural protections.
The history of the case itself it tortuous and not really relevant here. The short version is that the agency defendants sought to resolve citizen litigation regarding the “Survey and Manage” provisions of the NFP by entering into a consent decree that would amend certain elements of Survey and Manage. It was uncontested that, if the agencies had sought to do so outside the context of litigation, they would have had to follow FLPMA requirements. The agencies – and the District Court which upheld entry of the consent decree – argued that, because approval of a consent decree is a “judicial act”, it is not subject to the FLPMA procedures.
I’ve got to say, that argument just seems like a non sequitur to me. In any case, the 9th Circuit rejected it, concluding that:
“a district court abuses its discretion when it enters a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures.”