Endangered Species Law & Policy

On April 25, 2013, the United States Court of Appeals for the Ninth Circuit invalidated a consent decree that plaintiffs and three federal agency defendants asserted resolved a dispute spanning more than a decade.  See Conservation Nw. v. Sherman, No. 11-35729 (9th Cir. 2013) (pdf).  In doing so, the Ninth Circuit held that the district court abused its discretion when it entered the consent decree because it bypassed statutorily mandated public-participation procedures.

The Northwest Forest Plan applies to approximately 24.5 million acres of federal land spanning from San Francisco to the Canadian border.  The plan is intended to protect the long-term ecological health of the forests (including ecologically critical species) while also allowing for sustainable timber production.  In order to assess the impact of logging activities, survey and management standards were adopted as part of the Northwest Forest Plan.

In 2007, federal agencies issued final environmental documents supporting the elimination of the survey and management standards.  Environmental plaintiffs subsequently sued the federal agencies alleging violations of the National Environmental Policy Act, Endangered Species Act, National Forest Management Act, and Federal Land Policy Management Act.  After the district court held that the federal agencies violated the National Environmental Policy Act, the parties began negotiating the terms of a settlement agreement. 

Eventually, all of the parties, except for a single intervenor-defendant, agreed on terms and moved for entry of a consent decree.  Instead of eliminating the survey and management standards, the settlement agreement proposed to modify the standards.  The intervenor-defendant objected to entry of the consent decree on the basis that all modifications to the survey and management standards were statutorily required to go through a public-participation procedure, and entry of the settlement agreement would bypass that process.  The district court, rejected this argument and entered the consent decree.

On appeal, however, the Ninth Circuit found the intervenor-defendant's argument persuasive, and reversed the decision of the district court, holding that the district court abused its discretion when it entered the consent decree. 

Consent decrees are a common means of settling environmental litigation.  They are also, however, a potential means for abuse.  In fact, as noted in recent headlines, some members of Congress have proposed to modify the consent decree process in an effort to avoid the potential for abuse.  (See our blog post "ESA Legislation Proposed to Prohibit Certain Settlements and Awards.")  With all of this bad press, one wonders whether the courts are also starting to distrust consent decrees.  (See our blog post "Federal Court Denies Joint Motion for Consent Decree Regarding the Marbled Murrelet.")  Only time will tell.