Surprising Ruling By the Ninth Circuit Court of Appeals

by Claudia Elliott, Editor and Publisher of the Southern Sierra Messenger

As fires rage throughout California—and many believe their severity could be reduced by active forest management—there is a hope of a cool breeze coming from the Ninth US Circuit Court of Appeals.

No, this is not an April Fool’s joke in July. The Ninth Circuit is known for a range of what many people would call “wacky” decisions, particularly concerning environmental issues, which is why a ruling by an 11-judge panel of the court last week has some folks in shock.

Bottom line: The panel ruled that it’s improper for federal judges to act as scientists when weighing in on disputed U.S. Forest Service timber projects.

In their ruling, the judges overturned a July 2007 decision by a three-judge Ninth Circuit panel that halted the Mission Brush timber sale in the Idaho Panhandle National Forest. The litigating environmental groups in the case contended that the Forest Service’s logging plan would harm the region’s ecosystem for species including small, migratory owls. The ruling also overturned a 2005 decision concerning a Forest Service project in Western Montana.

U.S. Agriculture Department Undersecretary Mark Rey, who oversees the Forest Service, told the Associated Press that the ruling was “the most important decision involving a Forest Service environmental case in the last two decades,” saying it restores the ability of federal agencies, not meddling judges, to exercise discretion over timber sales.

“The judges established a much more limited framework for judicial review of Forest Service decisions – a framework that’s much more consistent with the standard use by other circuits,” Rey said last week. “The court says its role is not to act as a panel of scientists. They wanted to move back to a more appropriate role.”

It’s too early to know exactly what ramifications this ruling will have on Sequoia National Forest, Giant Sequoia National Monument, or other public lands throughout California. Environmental groups commenting so far have tried to minimize the importance of the ruling.

Personally, I value environmental review and I value community input in projects involving public lands. But too often, good projects developed with sound science and lots of effort are overturned by judges who have, as the Ninth Circuit panel determined, overstepped their bounds.

Perhaps this decision will level the playing field and return land use decisions to the public agencies who I will expect to follow the laws, rules, and regulations that apply–but hopefully without having a judge side with environmental organizations who want to apply impossible standards without any consideration of the risk we are taking in managing public lands in such a capricious manner.

The Southern Sierra Messenger is published every other Thursday at Springville, California; Mail subscriptions are available; Rates are $24 per year within Tulare County and $32 per year outside Tulare County; US addresses only. Send subscription order with payment to Community Media, PO Box 765, Springville, CA 93265 or call (559) 539-7514.

See also our previous post on this topic [here].

20 Jul 2008, 11:20am
by bear bait

I would agree with those who say pubic input, open air review, negotiations in the light of day, all are needed to make sure that public needs are addressed. However, not all are reasonable, sound thinking, defensible positions. And, to have the greatest good for the most, there has to be a give and take in the totality of the actions of public land managers. It can’t be all stockmen or timber barons, all purist hikers, or horse packers, mountain bikers or atv enthusiasts. But they all have some right to use public lands, even if you and I don’t think their use is the best or most appropriate. That is for the land managers to decide, and if they are off the charts in some tangent that does not fit with public expectations, then the process ought to be able to rein them in.

However, the “appeal by the numbers” blanket nay sayer litigants have had their day, and they have run out their string, and the 9th Circuit says enough is enough. Now they will have to have some reason to believe the law will protect one value to the detriment of all others. That is the change I see. Single use protections or single critter protections, as a non-use blanket across a wide landscape, are probably not going to be trump critters in the future. And, USFS science, and the science of other US agencies, all will be used to create plans to use and manage the land. The most important one I feel needs to be addressed is fuel removal and stand improvement thinning in all ages of timber. If the tops are close to touching, there are too many stems per acre. It takes multiple entries to get to that condition, but once you are there, it is a matter of seasonal underburnings and natural catastrophe cleanup and salvage to have that open, fire resistant, anthropogenic forest of old that seems to be the goal of those seeking arboreal nostalgia. You can get there from here, but it takes several hundred years of staying with a plan to get there. Somehow, that seems not likely in a tumultuous world like ours. Hopefully, our laws and the freedoms of the judiciary will still be with this country in a couple of hundred years. Bury me with my fingers crossed.

20 Jul 2008, 2:32pm
by backcut

This message from the 9th Circuit won’t stop the lawsuits. For the next few years, it will be “business as usual” for the “usual suspects”. Precedents will need to be set so that restoration forestry can proceed as streamlined and efficient as possible. Produce a Restoration CE, with silvicultural and economic controls that eco-groups will sign on to.

It’s funny that the judges are now trying to distance themselves from the ongoing forest disaster happening for the next few decades. We’re at a critical time and there are still plenty of things for us to do before our forests can be saved. Amazingly, this turnabout has come much quicker than I would ever have guessed. I had just about given up hope that our forests could be saved against runaway idealistic dogma eco-drama.



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