United States: California U.S. District Court’s Nationwide Injunction Affects Mining, Oil And Gas, And Timber Activities On National Forests

Last Updated: May 9 2012
Article by Scott N. Castro

This article was first published by Law360.

In mid-March, the U.S. District Court for the Eastern District of California issued a nationwide injunction that significantly affects mining exploration activities within lands managed by the U.S. Forest Service. Until this ruling, the Forest Service has relied on a June 4, 2003 agency regulation (located at 36 C.F.R. Part 215) (the "215 Regulation") that exempted from public notice, comment and administrative appeals activities deemed to be categorically excluded ("categorical exclusions" or "CEs") from the National Environmental Policy Act ("NEPA"). In a March 19, 2012 summary judgment ruling in Sequoia ForestKeeper v. Tidwell, however, U.S. District Court Judge Lawrence J. O'Neill invalidated the 215 Regulation's exemption for categorical exclusions.

Specifically, Judge O'Neill held that the exemption for categorical exclusions under the regulation violated Section 322(a) of the Forest Service Decisionmaking and Appeals Reform Act of 1992 (16 U.S.C. 1612) ("ARA"). The Judge found the exemptions under the 215 Regulations were "manifestly contrary to both the language and purpose of the ARA[,]" noting that Section 322 of the AR identifies no exclusions or exemptions from its requirement that the Forest Service provide notice, comment, and an administrative appeal for decisions implementing Forest Plans. Judge O'Neill criticized the regulations as "an attempt to circumvent the clear intent and purpose of Congress in passing the ARA, and were an impermissible construction of the ARA" and he noted that "[t]o comply with the ARA, the Forest Service should have promulgated regulations that preserved the comment, notice, and appeal for any decisions subject to administrative appeal prior to the proposed changes in 1992."

Notably, this case was not the first challenge to the Section 215 Regulation. Earth Island Institute and Sequioa Forestkeeper successfully challenged the regulation on similar grounds, resulting in the Ninth Circuit opinion Earth Island Institute v. Ruthenbeck. On review before the Supreme Court, however, the Court found that plaintiffs lacked standing to challenge the regulations, and the ruling was reversed on standing grounds and the opinion was invalidated.

There has been no word as to whether the Obama administration intends to appeal Judge O'Neill's ruling. Thus, for now, all categorical exclusions within National Forests are subject to the public notice, comment, and administrative appeals provisions of the 215 Regulations. As a practical matter, this means potentially 135 days of delay in implementation of exploration and related projects. The process includes: (i) public notice and a 30-day public comment period; (ii) the right to file an administrative appeal within 45 days of Forest Service approval; (iii) a 45-day period for the Forest Service to decide the appeal; and (iv) if the appeal is denied, exploration can begin 15 business days after the decision is issued.

The practical effects of the ruling are broad. Forest Service Chief Tom Tidwell stated during an April 18, 2012 Senate Appropriations subcommittee hearing that the ruling could potentially delay hundreds of Forest Service projects: "There are 600 of these projects that were ready to move forward in the next 90 days, not only some mineral operations but there are over 200 associated with oil and gas operations, primarily in North Dakota, and more than 90 hazardous fuels projects."

A clear example of the effect of the ruling was recently reported in the Ketchikan Daily News regarding delays to the Hecla Greens Creek Mine's plan to spend $4 million expanding known reserves on Admiralty Island in Alaska. The Forest Service published the legal notice for Hecla's exploration project on April 8th, triggering the 30-day public comment period. Overall, the 135-day period likely will significantly impact, if not jeopardize Hecla's 2012 surface exploration season.

Projects in the National Forests that had contemplated quick exploration or related projects this year thus now face the potential for significant delays for those projects. Pending revisions to the Forest Service regulations might have the potential to change the procedure. Under Section 428 of the Consolidated Appropriations Act of 2012, Pub. L. No. 112-74 (Dec. 23, 2011), the Forest Service is required to apply section 105(a) of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6515(a)), which provides for a pre-decisional objection process to proposed actions of the Forest Service concerning projects, in lieu of Section 322 of the ARA. In lay speak, this means that instead of a post-decisional appeal process, a pre-decisional "objection" may be filed with the Forest Service. This process appears unlikely to offer relief, however. In response to questioning from Lisa Murkowski (Alaska) during the April 18th subcommittee hearing as to whether the Consolidated Appropriations Act mandate could be used as a basis to create a pre-decisional objection process in lieu of the post-decisional notice and appeal process, Forest Service Chief Tidwell stated that the agency was considering this option, but stated "I'm not sure if it will [work]. It may not because the appropriations language was very specific to environmental assessments and [Environmental Impact Statements] and it did not mention categorical exclusions."

While it is possible that the Obama administration may seek to appeal Judge O'Neill's ruling, for now, projects within the National Forests now can no longer rely on an expedited path to conduct exploration and related activities that are categorically excluded under NEPA. For those operations intending to conduct exploration projects and related uses, consideration of the possible 135-day notice, review and appeal process must be factored into any such contemplated use. If the Forest Service is unable to utilize Section 428 of the Consolidated Appropriations Act of 2012 to establish a pre-decisional process for projects categorically excluded under NEPA, regulated industries may want to consider efforts to lobby for a legislative remedy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.