In this Article, I will first provide some background for the issues treated in the decision, beginning with the NFMA’s and NEPA’s statutory and regulatory requirements and how they were interpreted in the two Ninth Circuit cases that lead to the McNair decision, Lands Council v. Powell and Ecology Center v. Austin. I will then outline the history of the Lands Council v. McNair litigation, and from there discuss the Ninth Circuit’s en banc decision. Placing the decision in the context of the circuit’s NFMA and NEPA jurisprudence, I argue that the decision’s holdings, on their own, do not constitute a sea change but rather a course correction in line with traditional tenets of administrative law and judicial deference to agency decisions. However, I will also discuss how the language of the opinion could be read and relied upon by courts to avoid careful scrutiny of administrative decisions, and then examine whether this reading is borne out by recent cases applying the decision.
Keith G. Bauerle,
The Ninth Circuit's "Clarifications" in Lands Council v. McNair: Much Ado About Nothing?, 2 Golden Gate U. Envtl. L.J.