## Facts

- Federal land-management agencies implemented the Northwest Forest Plan, which included a “Survey and Manage” standard requiring surveys and habitat protections for certain species before ground-disturbing projects.
- Environmental organizations sued federal agencies and officials, alleging that agency changes to Survey and Manage violated federal environmental and administrative law.
- The environmental plaintiffs and the agencies settled, asking the district court to enter a consent decree embodying the settlement.
- The consent decree altered the Survey and Manage standard by changing species classifications and creating exemptions from pre-disturbance survey requirements for certain projects.
- D.R. Johnson Lumber Company intervened and objected, arguing the decree functioned as a permanent programmatic amendment adopted without legally required procedures.
- The district court approved and entered the consent decree over the intervenor’s objections.

## Issues

1. Whether a district court abuses its discretion by approving a consent decree that permanently and substantially amends an agency rule or programmatic standard that would otherwise be subject to statutory rulemaking procedures.
2. Whether the intervenor’s argument that certain federal timberlands were exempt from Survey and Manage under a separate statute was preserved for appeal.

## Decision

- The Ninth Circuit reversed the order approving the consent decree.
- The court held that a district court abuses its discretion when it enters a consent decree that permanently and substantially amends an agency rule that would otherwise require compliance with statutory rulemaking procedures.
- The court concluded the decree impermissibly conflicted with laws governing how the Survey and Manage standard could be amended.
- The court held the intervenor’s separate statutory argument regarding certain timberlands was waived because it was not adequately raised in the district court.
- The case was remanded for further proceedings consistent with these limits on consent decrees.

## Legal Principles

- A consent decree must (1) resolve a dispute within the court’s jurisdiction, (2) fall within the general scope of the pleadings, and (3) further the objectives of the law on which the complaint is based.
- Courts may not approve consent decrees that conflict with or violate applicable statutes or regulations.
- Consent decrees may provide case-specific or remedial relief, but may not be used to impose permanent, programmatic changes to an agency regulatory regime when Congress has required specified procedures for such changes (including rulemaking processes).
- Appellate review will treat an issue as waived when it was not adequately raised below.

## Conclusion

The Ninth Circuit held that judicial approval of settlement cannot be used to effect permanent, programmatic amendments to an agency standard in a manner that bypasses statutory procedures for changing that standard, and it reversed the district court’s approval of the consent decree on that basis.


Conservation Nw. v. Sherman, 715 F.3d 1181 (9th Cir. 2013)