Conservation Northwest v. Sherman

A district court abuses its discretion when it enters a consent decree that amends an agency rule which is permanent, substantial, and would have otherwise been subject to statutory rulemaking procedures

Conservation Northwest and other environmental groups sued the Bureau of Land Management (BLM), Forest Service, and Fish and Wildlife Service (collectively "the Agencies") challenging changes to the Survey and Manage Standard ("Survey and Manage") of the National Forest Plan ("NFP"). The district court approved and entered consent decree. D.R. Johnson Lumber Company ("D.R. Johnson") intervened and appealed; contending it was an abuse of discretion because “the consent decree conflicts with applicable law by amending Survey and Manage without following . . . procedural requirements, and [] its application to lands subject to the Oregon and California Railroad and Coos Bay Wagon Road Grants Land Act ("O & C Act") violates the Act.” The Ninth Circuit held 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.” The panel found that the consent decree amending Survey and Manage was improper because it was substantial, permanent, and did not follow statutorily required procedures. The panel held that a claim that the O & C Act precluded application of Survey and Manage to O & C lands was not properly raised as an issue below, and was therefore waived. REVERSED and REMANDED.