Headwaters, Inc. v. Bureau of Land Management, Medford District

Ninth Circuit

Headwaters, Inc. v. Bureau of Land Management, Medford District

940 F.2d 435

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 23, 1991

DocketNo. 89-35688

StatusPublished

Cited by1 cases

This text of 940 F.2d 435 (Headwaters, Inc. v. Bureau of Land Management, Medford District) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Headwaters, Inc. v. Bureau of Land Management, Medford District, 940 F.2d 435 (9th Cir. 1991).

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ORDER DENYING PETITION FOR REHEARING

Judges Wallace and Brunetti have voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Ferguson has voted to grant the petition for rehearing and recommended acceptance of the suggestion for rehearing en banc.

In its petition for rehearing, Headwaters argues that we should remand this case for reconsideration in light of the recent designation of the spotted owl as an endangered species. See 55 Fed.Reg. 26114 (June 26, 1990). However, the endangered species designation does not affect the claim before this court that the Bureau has violated the National Environmental Policy Act (NEPA). See 42 U.S.C. § 4332(2)(C). We have already held that the original environmental impact statement conformed with the requirements of NEPA, and Headwaters has not presented significant new information undermining this analysis. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 1859, 104 L.Ed.2d 377 (1989) (agency must file a supplemental impact statement only if its previous filings have been undermined by significant new information); Enos v. Marsh, 769 F.2d 1363, 1374 (9th Cir.1985) (supplemental impact statement not required although original impact statement was filed prior to designation of an affected species as endangered). The fact [436]*436that Headwaters may decide to assert a claim under the Endangered Species Act, 16 U.S.C. § 1531 et seq., does not require remand for redetermination in its case under NEPA.

The full court has been advised of the suggestion for an en banc hearing. An active judge called for an en banc vote, and a majority of the judges of the court has voted to reject the suggestion for rehearing en banc. Fed.R.App.P. 35(b).

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

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ORDER DENYING PETITION FOR REHEARING

Judges Wallace and Brunetti have voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Ferguson has voted to grant the petition for rehearing and recommended acceptance of the suggestion for rehearing en banc.

In its petition for rehearing, Headwaters argues that we should remand this case for reconsideration in light of the recent designation of the spotted owl as an endangered species. See 55 Fed.Reg. 26114 (June 26, 1990). However, the endangered species designation does not affect the claim before this court that the Bureau has violated the National Environmental Policy Act (NEPA). See 42 U.S.C. § 4332(2)(C). We have already held that the original environmental impact statement conformed with the requirements of NEPA, and Headwaters has not presented significant new information undermining this analysis. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 1859, 104 L.Ed.2d 377 (1989) (agency must file a supplemental impact statement only if its previous filings have been undermined by significant new information); Enos v. Marsh, 769 F.2d 1363, 1374 (9th Cir.1985) (supplemental impact statement not required although original impact statement was filed prior to designation of an affected species as endangered). The fact [436]*436that Headwaters may decide to assert a claim under the Endangered Species Act, 16 U.S.C. § 1531 et seq., does not require remand for redetermination in its case under NEPA.

The full court has been advised of the suggestion for an en banc hearing. An active judge called for an en banc vote, and a majority of the judges of the court has voted to reject the suggestion for rehearing en banc. Fed.R.App.P. 35(b).

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

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940 F.2d 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/headwaters-inc-v-bureau-of-land-management-medford-district-ca9-1991.

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