tidwell-brief

consideration of alternatives to resolve conflicts. The Plaintiffs have pointed
out the inconsistencies to the responsible Forest Service officials in their
respective areas, and those officials have refused to follow these rules and to
DEMONSTRATE IN THEIR EIS DOCUMENTS HOW THEY HAVE COMPLIED.
It is the latter failure that caused the Court in California Resources Agency to
prohibit further use of the Forest Service plan. The Court held that the
specific violation of the Service was that it did not “display” in its EIS the
results of its “review” which must include “display” in the EIS of each of the
four elements of the review set forth above.
The Court relied heavily on the importance of the demonstration of
compliance with these elements of “review” by displaying compliance in the
EIS:
“Even if the Forest Service’s review of California’s policy was
impeded by California’s failure to fully engage in the planning process, the
rule nevertheless required the Forest Service to display the results of its
review, however impeded. . . .The results of the Forest Service’s review of
state input should have been displayed in the FEIS, even if part of the
discussion would have consisted of noting that the State had not fully
engaged in the process….
“The failure to provide any discussion of input from the State, or at
least of the State’s failure to fully engage in the planning process, was a
violation of the NFMA. This is more than a merely technical violation, as it
significantly inhibits the public’s ability to understand the competing
priorities of the Forest Service and the State.”
These plaintiff local governments have not “impeded” the Service by failing
to “fully engage in the planning process”. In fact, these plaintiffs have
repeatedly urged the Forest Service to engage with them. These plaintiffs
have taken energetic steps in their own planning process, and have
attempted to engage the Service to consider the conflicts and inconsistencies
between the local plans and policies and those being put in place by the
Service. In these cases it has been the Forest Service that has impeded
coordination by absolutely refusing to engage with the local government
plaintiffs.
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